' NADEEM AZHAR SIDDIQI, J.- By this order I will dispose of the application for dismissing the suit of the plaintiff bearing (CMA No,7730 of 2007) filed by the defendant No,l under Order VII Rule 11, CPC.
2. Brief facts leading to the present application are that the suit has been filed by the Sub-Attorney of the plaintiff for declaration, cancellation of mutation effected on the basis of Gift Deed executed by the plaintiff in favour of the defendant No,l on the ground that there is no blood relation between the plaintiff and the defendant No,l and the gift was without consideration and the possession of gifted property was not delivered to the defendant No,l.
3. It is stated by the defendant No,l that the suit is not maintainable under the law and nowhere in the plaint or prayer the plaintiff is seeking cancellation of the gift document, which confers title upon the defendant No,l. It is further stated by the defendant No,l that the title of the subject property was conferred upon the defendant No,l on 19-11-1992 and the subsequent mutation of defendant No, 2 is mere formality, as such, no cause of action has accrued to the plaintiff and the defendants Nos.2 and 3 were legally bound to effect such transfer in their records on the basis of registered document.
4. Under the above background; the defendant No,l has filed application under Order VII, Rule 11, C.P.C. On the ground that the suit has been filed by the subattorney of the plaintiff without authority, the gift has become past and closed transaction and cannot be opened after 14 years, the gift as per Article 91 of Limitation Act was to be challenged within three years of its execution and is hopelessly time barred, the plaintiff has not alleged coercion, undue influence, fraud and misrepresentation, and no cause of action has been accrued to the plaintiff in the year 2003 to file the suit.
5. The plaintiff filed counter-affidavit to the application through sub-attorney and denied all the allegations levelled against her and has stated that the plaintiff entered into sale agreement with her. Through his attorney and further executed irrevocable general power of sub-attorney in her favour and her name was duly registered as owner in Form PT-1, therefore, the suit has been filed will full authority. The sub-attorney further submitted that all the records pertaining to the subject property were in her name including taxes and bills. The transfer/mutation of the subject property has been illegally manoeuvred by the defendant No,1 in collusion with the staff of defendant Nos.2 and 3 in an unlawful manner on the basis of an incomplete and cancelled gift to deprive the plaintiff from the subject property.
6. The learned counsel for the defendant No,1 submits that the declaration of gift was duly executed and registered on 19-11-1992 and the limitation for filing the suit was three years in terms of Article 91 of the Limitation Act. He submits that the plaintiff has not challenged the declaration of gift, which confers title upon the defendant No,1 and merely challenging the mutation is not sufficient to challenge the gift itself. He further submits that once the gift was acted upon the same cannot be challenged or revoked. He further submits that the plaint does not disclose any cause of action and no cause of action was accrued to the plaintiff in the year 2003.
7. The learned counsel for the plaintiff submits that gift was incomplete as the possession of the property was with the tenant who used to pay rent to the sub-attorney of the plaintiff till 2003. He submits that in 2003 the mutation was effected in favour of the defendant No,1, as such, cause of action was accrued in 2003 and the suit was competently filed. He further submits that contents of plaint are to be considered as true and correct at its face value and the same disclose a cause of action and the plaint cannot be rejected.
8. The plaint can be rejected only if comes within the mischief of Rule 11 of Order VII CPC. The rejection of the plaint was sought on two grounds firstly that the plaint does not disclose a cause of action and secondly that the suit is barred by Article 91 of the First Schedule of Limitation Act. For rejecting the plaint on the first ground the, contents of entire plaint and accompaniments are to be considered and it may be treated as true and correct on its face value. The defence cannot be looked into for rejecting the plaint on the ground that the suit is barred by any law, the plaint can only be rejected when the suit appears from the statement in the plaint to be barred by any law.
9. It is an admitted position that the declaration of gift was executed and registered on 19-11-1992 and the said declaration of gift was not challenged and only the mutation recorded on 22-3-2005 and the NOC dated 3-3-2005 which were recorded on the basis of declaration of gift were challenged. The title of the property was conferred upon the defendant No,1 by way of execution of registration of declaration of gift, which was not challenged unless the plaintiff challenged the declaration of gift no effective relief can be granted in favour of plaintiff and unless the declaration of gift is cancelled the declaration that the plaintiff continues to be owner of commercial property cannot be granted. It appears that the plaintiff knowingly to avoid the implication of Article 91 of the First Schedule of the Limitation Act has not challenged the declaration of gift. The entries in the record of rights maintained by the defendants Nos.2 and 3 do not confer title upon the defendant No,l by way of execution and registration of declaration of gift remains intact and the defendant No,l continues to enjoy the property. However, this isvnot a valid ground to reject the plaint and the plaintiff is entitled to suitably amend the plaint. Under Article 91 of First Schedule to the Limitation Act, the declaration of gift can be challenged within three years from the date when the facts entitling die plaintiff to have the instruments cancelled or set aside become known to him. The plaintiff claims that she was receiving the rent from tenants till 2003 and cause of action arose in September 2003 when the tenants of the subject property suddenly discontinued the payment of rent to Mst. Zeenat Qureshi and on 16-6-2006 when the defendant No,l asserted ownership of the property. For rejecting the plaint the above contents of plaint are to be taken as true on its face value. This is also a factual controversy and can only be resolved by allowing the parties to produce evidence in support of their respective claims. In presence of the allegation that die gift was not complete and the same was without consideration it cannot be said that the plaint does not disclose a cause of action and Article 91 of the Limitation Act also does not provide the starting point of limitation from the date of execution of instrument. In presence of the allegation in the plaint that in September, 2003 the tenants discontinued payment of rent to the plaintiff, it cannot be said that suit was not filed within three years when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him.
10. In view of the above position, the application has no merits and is accordingly,dismissed.
However, at the stage of framing the issues, the issues with regard- to the question raised in this application will be framed.
11. The observations made above are tentative in nature and will not affect the case of the parties on merits. The parties are left to bear their own costs.