Partition suits carry a continuous cause of action and generally do not attract a fixed period of limitation. Issues regarding limitation are often mixed questions of fact and law requiring evidentiary support; thus, a plaint should not be summarily rejected unless a statutory bar is explicitly evident on its face.

JUDGMENT :

ROBIN PHUKAN, J.

Heard Mr. A. Saikia, learned counsel for the petitioners and also heard Mr. M.J. Bordoloi, learned counsel for the respondents.

2. In this petition, under Article 227 of the Constitution of India read with Section 115 of the Code of Civil Procedure, 1908, the petitioners have challenged the order dated 09.10.2023 passed by the learned Civil Judge (Sr. Division), Jorhat, in Misc.(J) Case No.28/2019 in Title Suit No.21/2016.

3. Mr. Saikia, learned counsel for the petitioners submits that the respondents herein as plaintiffs instituted a title suit, being Title Suit No.21/2016 for declaration of alleged partition deed which may have been executed by the petitioners/defendants without the consent of the plaintiffs and proforma defendant No.9 or their mother is void ab initio and subsequent/alienation mutation on the strength of the said deed is void and liable to be cancelled and also for a decree for confirmation of right, title and interest of the plaintiffs and proforma defendant No.9 to the extent of 1/5^th share in each and every dags of suit patta land/property as detailed in the schedule and for a decree for declaring plaintiffs’ and proforma defendant No.9’s right, title over the Schedule-A land and for issuing preliminary decree and precept for partitioning plaintiffs’ and proforma defendant No.9’s 1/5^th share of the Schedule-A property out of Schedule-C property and also to appoint commission for accessing the rent and profits of Schedule-C property and for appointment of Commissioner in the District Collector under Order 20 Rule 18 CPC for partitioning the suit land entitled by the plaintiffs and proforma defendant No.9 with delivery of plaintiffs’ share in metes and bounds and also for final decree and permanent injunction. In the said title suit, the petitioners herein have filed a petition under Order 7 Rule 11(d) of the CPC on 04.04.2019, upon which Misc.(J) Case No.28/2019 was registered and thereafter, the petitioner Nos.3 and 4 also filed similar petition on 26.07.2022 and thereafter, hearing both the parties, the learned Civil Judge (Sr. Division), Jorhat (hereinafter referred to as the trial Court) was pleased to dismiss the petition.

4. Mr. Saikia, learned counsel for the petitioners submits that a bare perusal of the plaint reveals that the title suit is barred by the law of limitation and it has no viable cause of action or application of Hindu Succession Act, 1956 and that the respondents/plaintiffs have sought to create an illusory cause of action on 1/5^th share of both of their maternal grandparents’ estates based on the death of their mother Balwant Kaur on 07.09.1972 and Tahel Singh died on 08.11.1955 and nowhere in the plaint, or in the genealogy filed and Tahel Singh died over six decades before the filing of the suit and that the parties to the suit are governed by the Mitakshara School of Hindu Law and at the time of Tahel Singh’s death, he was survived by his wife Dhan Kaur, their sons Dewan Singh and Darshan Singh, their married daughter Nant Kaur and their two unmarried daughters Balwant Kaur and Jaswant Kaur. Further, the Hindu Succession Act, 1956 under which the respondents/plaintiffs made their claim, had not even come into existence when Tahel Singh died. And according to the prevailing law, his legal heirs with a right to inherit his moveable and immoveable property, were solely his wife Dhan Kaur and his two sons Dewan Singh and Darshan Singh and in view of Article 65(b) of the Limitation Act, 1963, the statute of limitations for Balwant Kaur to challenge alienation of her interest, if