A suit for declaration and partition cannot be dismissed at the threshold if it discloses a cause of action; limitations must be determined through trial.

ORDER :

1. Heard Sri. Santosh B.M. learned counsel for the petitioner. None appears for the respondents.

2. Fifth defendant is the revision petitioner challenging the dismissal of the application filed under Order VII Rule 11 of the Code of Civil Procedure in OS No.323/2016.

3. Facts which are utmost necessary for disposal of the present revision petition are as under:

3.1 A suit came to be filed in O.S. No.323/2016 by the first respondent on the file of Civil Judge at JMFC, Chikkaballapura.

3.2 In the suit, following prayer is made in the respect of following immovable properties (hereinafter referred to as the 'suit properties').

PRAYER

Wherefore, the plaintiff prays that this Hon'ble Court be pleased to pass a judgment and decree in his favor against the defendants:-

a) Declaring that the plaintiff is entitled to 1/5^th share in the plaint schedule property.

b) For partition and separate possession by metes and bounds of plaintiff's such share be made under Section 54 of the Code of Civil Procedure.

c) For costs and such other reliefs as this Hon'ble court may deems meet in the circumstances of the case, in the ends of justice and equity.

SCHEDULE

1. Sy No. 41/12 measuring 0-04 guntas

2. Sy No. 41/13 measuring 0-02 guntas

Both the properties are situated at Yalagere village, kasaba hobli, Chickballapur taluk and commonly bounded on:-

East by : Land of Chikka Venkatarayappa

West by : Land of Putta Reddy

North by: Land of Mallenahalli Narayanappa

South by: Gokunte

3.3 Plaintiff claimed that plaintiff and defendants no.1 to 4 are the children of one Maralasiddappa who was owning the suit property and died intestate. The revenue entries stood in the name of Maralasiddappa during his lifetime and after his death, it is the plaintiff and defendants No.1 to 4 who being the members of Joint Hindu Family, were in joint possession and enjoyment of the property being the coparceners.

3.4 It is further contented that defendants No.1 to 4 colluding themselves, ignoring the legitimate site of the plaintiff, sold the suit property in favour of the fifth defendant. Plaintiff having noted the revenue entries, filed the suit seeking his legitimate share with a declaratory relief that the sale deed executed by defendants No.1 to 4 in favour of the plaintiff would not bind the rights of the plaintiff.

3.5 Pursuant to the suit summons, fifth Defendant entered appearance filed written statement also filed an application under Order VII Rule 11 of the Code of Civil Procedure on the ground that the suit is barred by limitation and there is no cause of action to file the suit. Said application was opposed by the plaintiff by filing detailed written objections.

3.6 Learned Trial Judge after hearing the parties, dismissed the application filed by the defendant inter alia holding in paragraphs under the caption "REASONS" as under :

REASONS

The suit is one for partition and separate possession wherein in para No.6 of the plaint he has stated that, he noticed the name of defendant suit schedule No.5 pertaining to properties and he learnt that, the same created is in revenue documents without his knowledge and revenue the basis of on documents the deeds have been created in the name of defendant No.5 and by going through the said averments it is not clear when the plaintiff came to know about the execution of deeds in favour of defendant No.5 and further it is not the contention of defendant No.5 who has filed the present application that, plaintiff is also one of the signatory to the sale deed executed in his favour and for that reason at this stage the court cannot arrive at the conclusion that, whether the sale deed executed in