Uttarakhand High Court
Unknown vs Smt. Sukhraj Kaur on 13 March, 2026
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SA No.5 of 2024
Hon'ble Siddhartha Sah, J.
Mr. Jitendra Chaudhary, Advocate for the
appellant.
By means of this second appeal, the
defendant/appellant has assailed the
judgment and decree dated 02.01.2023 passed
in Original Suit No.272 of 2022, Jasbir Singh
vs. Smt. Sukhraj Kaur, as well as the first
appellate judgment and decree dated
07.10.2023 passed in Civil Appeal No.08 of
2023, Jasbir Singh vs. Smt. Sukhraj Kaur,
passed by the learned 3rd Additional Civil
Judge, Haridwar and learned 5th Additional
District Judge (ADJ), Haridwar, District
Haridwar respectively, whereby firstly the trial
court vide its judgment and decree dated
02.01.2023 dismissed the original suit of the
plaintiff/appellant under Order 7 Rule 11 (a) &
(d) of CPC and thereafter when the appellant
preferred regular first appeal, the same was
also dismissed by the 5th ADJ, Haridwar
confirming the decision of the trial court.
Heard learned counsel for the appellant.
The plaintiff/appellant had filed Original
Suit No.272 of 2022, Jasbir Singh vs. Smt.
Sukhraj Kaur, seeking cancellation of sale
deeds dated 01.01.2003 and 18.12.2002.
Learned counsel for the plaintiff
/appellant has drawn the attention of the
Court to paras 5 and 6 of the plaint, wherein
in para 5, it has been stated that in the year
2019, the defendant compelled the plaintiff to
reside separately and refused to undertake the
family responsibilities. In para 6, it has been
stated that the defendant did not improve her
behaviour and on 27.07.2022 refused to cancel
the sale deed. Therefore, the suit was filed
vide the plaint verified on 08.11.2022.
Mr. Jitendra Chaudhary, learned counsel
for the appellant has taken the Court to the
trial court’s judgment dated 02.01.2023,
whereby the plaint has been rejected in
exercise the powers under Order 7 Rule 11 (a)
& (d) of CPC.
The trial court has come to a conclusion
that the plaintiff did not have cause of action
since the cancellation of the sale deed has
been filed after 19 years. The judgment of the
trial court was assailed before the 1st Appellate
Court and the 1st Appellate Court has also
dismissed the appeal vide judgment and order
dated 07.10.2023. At the first appellate stage,
the appellate court framed two points for
determination.
“(i) Whether the suit filed by the plaintiff
is without any cause of action and is beyond
limitation?
(ii) Whether the original suit has been
decided by the trial court without considering
the entire facts and evidence?”
The 1st Appellate Court has returned the
finding that the plaint does not mention the
reasons for bringing the suit within limitation
as to how the suit is within limitation and in
such a situation the court acquires the right in
exercise the provisions Order 7 Rule 11 of
CPC.
The 1st Appellate Court has further
returned the finding that on record there is no
fact which may conclude the delay period
between 2019 to 2022 was properly explained.
Learned counsel for the
plaintiff/appellant has made the submission
that the limitation of suit for cancellation as
per Article 59 of the Limitation Act would begin
to run when the facts entitling the plaintiff to
have the instrument or decree cancelled or set
aside first become known to him.
In the present case, the plaintiff was
entitled to have the sale deed cancelled only in
the year 2019 and the suit filed in the year
2022 was within limitation. Moreover, it has
also been pleaded that the issue of limitation is
a mixed question of law and fact and the same
could not have been decided in an application
Order 7 Rule 11 (a) & (d) of CPC.
Considering the facts and circumstances
of the case and after going through the record,
the instant appeal deserves to be admitted on
the following substantial question of law:-
“(i) Whether the trial court as well as the
1st Appellate Court erred in returning the
finding that the suit filed by the
plaintiff/appellant was barred by limitation?
(ii) Whether the issue of limitation which
is a mixed question of law and fact both, can
be decided merely upon moving an application
under Order 7 Rule 11 (a) & (d) of CPC or for
that purpose, the suit is liable to be decided on
merit after analyzing the evidence on record
from both side?”
Issue notice to the respondent. Steps to
be taken within a week.
List this case on 11.06.2026.
(Siddhartha Sah, J.)
13.03.2026
Ravi