A trial court must not reject a plaint due to limitations or merits without allowing the necessary factual determination, especially when a suit for partition can be filed upon arising cause of action.

JUDGMENT :

JAYANT BANERJI, J.

Heard the learned counsel for the appellant and learned counsel for respondent No.12, though the name of learned counsel Sri. C.K.Rudramurthy for R1 (B) to (E) is shown and all the other respondents have been served, and other counsel appear for the other respondents.

2. The learned counsel for the parties have consented that despite the matter being listed for admission, since a short question of law is involved and the original record is available, this case may be considered at this stage itself, for disposal.

3. Learned counsel for the plaintiff/appellant Sri.H.M. Manjesh has submitted that the learned trial Court has rejected the plaint of the appellant on the basis of an application moved under Order VII Rule 11(a) and (d) of the CIVIL PROCEDURE CODE , [CPC] on the ground that neither any cause of action is reflected in the plaint, nor is the plaint within limitation. It is submitted that the issue of limitation is a mixed question of fact and law that is required to be adjudicated at the time of consideration of the suit itself during trial. It is further submitted that as is the settled law, it is only the plaint that is required to be looked into for the purpose of deciding whether a plaint is to be rejected. He contends, this has not been done by the learned trial Court which has been delved into the merits of the matter and conducted a mini trial while rejecting the plaint.

4. The learned counsel for the appellant has placed reliance on Paragraph Nos.6 and 8 of the plaint as well as the reliefs sought in the plaint. In support of his submissions, he has also referred to the various paragraphs of the order passed by the trial Court, which is impugned in the present appeal. It is his admitted case that the property was the self-acquired property of the father of the plaintiff and the trial Court has entered into the issue of co-parcenary rights of the successors of her father. It is further contented that the suit, inter alia is one of partition and the cause of action in such suits would arise when the possession or the status quo with regard to each successor is sought to be disturbed and therefore, the suit cannot be said to be barred by limitation and the trial Court has committed a jurisdictional error in rejecting the plaint.

5. Learned counsel for respondent No.12/defendant has stated that the plaint is an example of suppression of material facts. He has stated that as is evident from paragraph No.13 of the impugned order, a sale deed had been executed by the father of the plaintiff himself way back in 1950 which fact was concealed by the plaintiff. He has referred to the conduct of the plaintiff and the false case being set up by her only to harass and subject the defendants to unnecessary strain by filing this suit. It is contented that the trial Court was justified in rejecting the plaint under the facts and circumstances of the case.

6. We have perused the plaint and the application moved by defendant No.12 under Order VII Rule 11(a) and (d) of CPC as well as the impugned orders.

7. The point for determination would be: ‘whether the trial Court was justified in rejecting the plaint’?

8. In paragraph No.2 of the plaint, it is stated that the property bearing Sy.No.46 measuring 8 acres situated in Janthagalli Village, Varuna Hobli, Mysore Taluk more fully described in the schedule to the plaint originally belonged to Agasara Hombale more precisely, father of the plaintiff. The said land was purchased by the father of the plaintiff through registered sale deed dated 15.08.1921