Tapashi Subhra Roy And ORS. v. Tapas Kr. Roy

sandip Ct. 19 20.08.2024 In The High Court At Calcutta Civil Revisional Jurisdiction C.O. 426 of 2023 Smt. Tapashi Subhra Roy & Ors.

Vs.

Sri Tapas Kumar Roy Mr. Abhijit Ray, Mr. Santu Nandy, Ms. Aishwarya P. Ganguly, Mr. Debarna Roy ... For the petitioners. Mr. Sibasish Ghosh, Mr. Prasanta Kr. Banerjee ... For the opposite party. The instant application under Article 227 of the Constitution of India is directed against the order dated November 30, 2022 passed by the learned Civil Judge (Senior Division) at Serampore, District - Hooghly, in the said suit being Title Suit No. 562 of 2014. The plaintiff, the opposite party herein, in the aforesaid suit, inter alia has prayed for a decree of partition and a further declaration that the deed of sale dated June 03, 1964 is not binding upon him.

The defendants of the said suit, the petitioners herein by an application under Order VII Rule 11 of the Code of Civil Procedure had prayed for rejection of the plaint of the said suit alleging that the challenge to the said deed dated June 03, 1964 is barred by limitation inasmuch as during the cross-examination, the plaintiff has admitted that he had the knowledge about the said deed prior to July 09, 1982. The learned Trial Judge by the order impugned has dismissed the said application holding that the cause of action of the suit arose on the refusal of the defendants to effect amicable partition of the suit property on June 01, 2014, therefore the suit was filed within the period of limitation.

The bar of limitation is a mixed question of law and fact, as such generally would not attract the provision of Order VII Rule 11 of the Code unless such bar is found to be apparent from the averments of the plaint itself, the evidence adduced by the parties in course of the trial of

the suit cannot be taken into consideration to press the said bar into service.

An issue regarding maintainability of the suit has already been framed, the suit is at a very advanced stage, as such it would be appropriate to leave the said issue for the learned Trial Judge to answer on the available materials on record.

With the above, C.O. 426 of 2023 is disposed of, there shall however be no order as to costs.

Parties to act on the server copy of this order duly downloaded from the official website of the Court.

Urgent Photostat certified copy of this order, if applied for, be xsupplied to the parties subject to compliance with all requisite formalities.

(Biswajit Basu, J.)