Disputed questions of fact, such as limitation and possession in a partition suit, should be decided after parties have led evidence, not at the stage of preliminary issues.

JUDGMENT :

VALMIKI J. MEHTA, J.

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the Judgment of the trial court dated 09.09.2016 by which the trial court has dismissed the suit for partition by deciding three preliminary issues against the appellant/plaintiff. The three preliminary issues pertained to the bar of limitation to filing of the suit, proper court fee not having been paid and the necessary parties, being the sisters of the appellant/plaintiff, not joined as parties.

2. The facts of the case are that the subject suit for partition was filed for the property no. J-111A, Main Road 4th Pusta, Kartar Nagar, Delhi-110053 which was said to have been owned by the mother of the appellant/plaintiff, Smt. Angoori Devi. Smt. Angoori Devi is also the mother of the two defendants in the suit. It was pleaded in the plaint that Smt. Angoori Devi expired intestate and she left behind three sons and four daughters. The suit was only against two sons because the appellant/plaintiff pleaded that the sisters, i.e. daughters of Smt. Angoori Devi, had given up their shares in favour of the three brothers being the three parties to the present suit. Accordingly, the appellant/plaintiff claimed the relief of partition, injunction etc.

3. It is trite that when a preliminary issue is decided, the same is decided by taking the contents of the plaint as correct. At the stage of decision of the preliminary issue, parties have not led their evidence and the suit is not decided at the stage of final arguments, after all the parties have led their evidence on disputed questions of fact. It is therefore to be seen that whether the suit could have been dismissed by taking three issues of limitation, deficiency of court-fee and non-joinder of necessary parties as preliminary issues.

4. So far as the aspect of non-joinder of necessary parties being sisters of the parties, counsel for the appellant/plaintiff states that appellant/plaintiff be allowed to join the sisters as the defendants in the suit though it is pleaded that the sisters have relinquished their shares in favour of the brothers. It is argued that even if the sisters were not added, the suit could not have been dismissed because it was only if the appellant/plaintiff after leading evidence had failed to prove the relinquishment by the sisters, only then the appellant/plaintiff would have failed in the suit for partition, otherwise, the trial court would have at the stage of final arguments, after evidence was led, held that the relinquishment has been proved by the sisters and therefore they were not necessary parties. In any case, now since the appellant/plaintiff admits that the four sisters will be added as defendants to the suit, it is ordered accordingly, and the appellant/plaintiff will now file before the trial court on remand of the suit, an amended memo of parties alongwith the amended plaint, and notices will now be issued to the four sisters of the parties who would also be the defendants in the suit.

5. So far as the issue of limitation is concerned, the trial court has committed a complete illegality in holding that the limitation for filing a suit for partition is three years from the date the cause of action arose. A partition suit is a suit by which a person claims his share in an immovable property. With respect to such a suit, limitation will be a period of 12 years as per Article 65 of the Limitation Act, 1963 and this period of limitation will commence when the defendants in the suit plead and prove that they have denied the title of the appellant/plaintiff in the suit property earlier than 12 years from filing of the suit for partition. Therefore, this aspect is a disputed question of fact as to whether or not the respondents/defendants will or will not prove that they have denied the title of the appellant/plaintiff 12 years prior to the filing of the suit. Once there is a disputed ques