Point of Law: Legislature has not prescribed any period of limitation for filing a suit for partition because partition an incident attached to property and there is always a running cause of action for seeking partition by one of co-sharers if and when he decides not to keep his share joint with other co-sharers.

ORDER :

R. DEVDAS, J.

The petitioners are defendants No.1 to 3 in O.S. No. 17/2020 on the file of the learned II Addl. Sr. Civil Judge & JMFC, Hubballi (for short ‘the trial Court’) and they are aggrieved by the impugned order dated 09.11.2021 passed in I.A. No. III. The petitioners shall be referred to as defendants and the respondents shall be referred to as plaintiffs for the sake of convenience.

2. I.A. No. III was filed by the defendants under Order VII Rule 11(a) and (d) read with Sec. 151 of CPC praying the trial Court to reject the plaint on the ground that the suit is barred by limitation by reason of Sec. 27 of the Limitation Act, 1963. The said application having been rejected, the defendants are before this Court.

3. Learned Senior Counsel Sri Shreevatsa, appearing for the defendants would submit that the plaintiffs are the full sisters of defendants No.2 and 3 and they filed the instant suit seeking partition and separate possession of the share of each of the plaintiffs in the suit property. The plaintiffs have also sought for a declaration that the registered relinquishment deed dated 29.12.2004 executed by the plaintiffs in favour of defendants No.1 to 3 is not binding on the share of the plaintiffs.

4. Learned Senior Counsel submits that earlier the linear descendents of Sri Narayansa had filed O.S. No. 178/2005 wherein all the parties herein were arrayed as defendants, including the plaintiffs. Although the present suit schedule property bearing CTS No. 470/1 situated at Ward No.3 ad-measuring 3 acres 15 guntas, 5 sq.yards situated at Marian Timmasagar village, Karwar Road, Hubballi, was also part of the suit schedule properties in O.S. No. 178/2005, nevertheless the claim in respect of that property was given up. The plaintiffs herein were placed exparte and they did not contest the suit. However, after the judgment dated 16.02.2016 was rendered in O.S. No. 178/2005, original plaintiffs in O.S. No. 178/2005 filed R.F.A. No. 100186/2016 before this Court. In the said appeal the plaintiffs sought to file cross-objections. It was sought to be contended at the hands of the plaintiffs that they came to know about the fraud that was played upon them by defendants No. 5, 10 and 11, i.e., their full brothers and uncle in getting a relinquishment deed executed in their favour on misrepresenting that they were called to the Sub-Registrar’s office stating that they had to execute a power of attorney. However, objections were filed to the cross objections, mainly contending that Court fee was required to be paid as was paid on the plaint. The plaintiffs were directed to pay Court fee. Aggrieved, the plaintiffs approached the Hon’ble Supreme Court in SLP No. 33257/2017. Observations were made by the Hon’ble Apex Court and liberty was granted to the plaintiffs to file a fresh suit and get their rights adjudicated. Taking note of the said orders passed by the apex Court, this Court also permitted the plaintiffs to file a fresh suit. Consequently, O.S. No. 17/2020 was filed at the hands of the plaintiffs.

5. Learned Senior Counsel would therefore contend that the plaintiffs cannot deny the fact that they knew about execution of the relinquishment deed dated 29.12.2004, apparently as far back as 2016 when it was openly contended by the plaintiffs that they came to know about the fraudulent execution of the relinquishment deed and therefore they sought to file cross objection in R.F.A. Cr. Ob. No. 100005/2016. It is therefore the contention of the defendants that when admittedly the plaintiffs expressed that they came to know about the relinquishment deed in the year 2016, after the judgment and decree was rendered in O.S. No. 178/2005, the cause of action for seeking a declaration that the registered relinquishment deed dated 29.12.2004 is not binding on the share of the plaintiffs commenced at least in the year 2016. Therefore, having regard to Sec.27 of the Limitation Act read with Article 59 where the period of limitation presc