The issue of limitation cannot be tried as a preliminary issue and the rejection of the plaint on the ground of limitation was illegal and cannot be sustained.

N. Kumar, J.

1. This is plaintiff's regular first appeal challenging the judgment and decree of the Trial Court, dismissing the suit of the plaintiff as barred by law of limitation, allowing the application filed by defendant 1 under Order 7, Rule 11(d) of the Civil Procedure Code, 1908 (for short hereinafter referred to as CPC). The plaintiff filed a suit for a declaration that the sale deed dated 29-6-1983 in respect of schedule property insofar as the plaintiffs undivided 1/17th right is concerned, is illegal, unenforceable, void ab initio, null and void and not binding on him and for a partition and separate possession of the schedule property into 13 shares, taking into consideration good and bad soil and allot one such share to the plaintiff.

2. The subject-matter of the suit is an immovable property situated at Kodialbail Village of Mangalore Taluk, within the limits of Mangalore City Corporation, bearing R.S. No. 385/1A, T.S. No. 218/1A measuring 1 acre 66 cents.

3. The case of the plaintiff is that the schedule property along with other properties originally belonged to Kodialguthu family, of which, plaintiff is a member. This is a 'bunt' family and is governed by 'Aliya Santhana Law of Inheritance'. Subsequently, there was a partition and the schedule property along with other properties were allotted to the branch of one Seethamma, the great grandmother of the plaintiff. Plaintiff is a member of that branch. After the partition, the plaintiff and other members were in joint possession and enjoyment of the same. The plaintiff is entitled to 1/17th share in the properties allotted to the branch of late Seethamma, including the schedule property. The plaintiff was born on 5-7-1980.

4. In the month of April 2007, the plaintiff came to know, through his well-wishers, that some people were trying to change the nature of the suit schedule property. Plaintiff is residing at Bangalore. Immediately he came down to Mangalore and made enquiries and also obtained the latest copy of the RTC in respect of the schedule property. To his utter surprise, he came to know that the name of the first defendant had been entered in the RTC. After verification, he came to know that the first defendant in collusion with some others had created some sham documents i.e. sale deed dated 29-6-1983 registered as Document No. 189/83-84 in the Office of the Sub-Registrar, Mangalore City, Mangalore. The defendants 3 to 9, 11, 13 and 14 are parties to the aforesaid alleged sale deed. Defendants 2, 10 and 12 are the legal heirs of other parties to the aforesaid alleged sale deed. The plaintiff is a minor on the date of the said sale deed. He had not sold his share in the suit property either to the first defendant or anyone else. In the sale deed, it is averred that the plaintiff was represented by one Hemavathi R. Sherry grandmother of the plaintiff, on the strength of the general power of attorney stated to have been executed by Mrs. Suchithra Poonja, the mother of the plaintiff. At no point of time either the plaintiff or his mother executed any power of attorney empowering Hemavathi R. Shetty grandmother to execute the alleged sale deed in respect of the suit schedule property. The alleged sale deed was not for any legal necessity of the plaintiff. Plaintiff did not receive any consideration under the aforesaid void document. No permission was obtained from the Court to sell plaintiffs share in the schedule property. No title in respect of the plaint schedule properties so far as the undivided right of the plaintiff is concerned has been conveyed in favour of the first defendant. The recitals in the alleged sale deed are totally false. The sale deed is not binding on the plaintiff and he is entitled to ignore the same to the extent of his undivided right. The plaintiff is in joint and constructive possession and enjoyment of the suit schedule property. At the most, the first defendant would step into the shoes of the other co-sharers' undivided