- (1.) Defendants, aggrieved by dismissing of their application under Order 7 Rule 11 CPC vide impugned order dated February 4, 2010, have invoked the jurisdiction of High Court under Article 227 of the Constitution of India claiming that the application under Order 7 Rule 11 CPC filed by the petitioners should have been allowed, rejecting the plaint of the plaintiff- respondent No.1 being barred by limitation. The trial had formed an opinion that plea of limitation being a mixed question of law and fact, the suit cannot be summarily dismissed under Order 7 Rule 11 CPC.
(2.) In order to appreciate the contentions of defendant- petitioners, it is expedient in the interest of justice to appreciate the contents of the plaint filed by plaintiff- respondent No.1. Copy of the plaint has been appended as annexure P-1. Vide his suit, the plaintiff- respondent No.1 has sought a declaration that he is owner in possession as co-sharers of the land measuring 36 kanals 8 marlas which is half share of 72 kanals 17 marlas, as mentioned in the heading of the plaint and that the judgment and decree dated June 14, 1977 passed by the Civil Court in Mann Singh and others Vs. Joga Singh is wrong and result of fraud and collusion and liable to be set aside. The mutation, on the basis of said decree has also been challenged.
(3.) The rapat dated March 8, 1979 regarding exchange between defendant No.3 and defendants No.5 and 6 and subsequent mutation of March 11, 1979 have been challenged, as wrong. A judgment and decree dated June 14, 1980 passed in favour of defendant No.3 at the instance of defendants No.5 and 6 and subsequent mutation on the basis of said decree have also been challenged.;