Mr. N. Sathish Kumar, J.

The 6th defendant in C.S.No.401 of 2013 has taken out this application qua rejection of plaint in the above suit.

2. Originally, the suit property was purchased jointly by all the sons of one Mr. Yahya Noor from U.N. Shiva Rao, vide Sale Deed dated 17.08.1977. They had also put up construction jointly in the said property. Thus, all the six co-owners were entitled to 1/6th share each in the entire suit schedule property. While so, without the knowledge of the other co-owners, one Mr. Rafik and Mr. Zaki, sons of the said Yahya Noor, executed Settlement Deeds dated 03.8.2007 and 25.06.2008 respectively transferring their 1/6th share each to their brother, Mr. Kamil, the 2ndnd respondent herein/ original 2ndnd plaintiff. 7th respondent herein/original 5th defendant, appointed their mother, Balkis, as Power Agent vide Deed of General Power of Attorney dated 01.9.2009 to deal with their undivided share and the 1st floor of the premises. Pursuant to the said execution of Power, Mrs. Balkis leased out the entire first floor to one V.M. Thandapani, by way of Lease Deed dated 12.09.2009. Thereafter, the same was sold to the applicant/original 6th defendant along with 2/6th undivided share of land in schedule "A" property vide Sale Deed dated 11.12.2009 for a valid consideration of Rs. 1,20,00,000/-. In these circumstances, the instant suit has been filed by the respondents 1 and 2/original plaintiffs for declaration and consequential injunction.

3. Pending the suit, the applicant/original 6th defendant has filed the captioned application qua rejection of plaint. According to the applicant/original 6th defendant, in view of the aforementioned Sale Deed dated 11.12.2009, they became the absolute owner of 2/6th undivided share of land and that they are in possession and enjoyment of the same. It is the case of the applicant that the suit, which has been filed based on preemption, is barred by limitation as the right of preemption is not recognised in Madras Presidency. Hence, the original 6th defendant prayed for rejection of plaint in C.S.No.401 of 2003.

4. Denying the allegations, the respondent No. 1/original 1st plaintiff has filed a counter contending that the suit "A" schedule property was never partitioned among the brothers and they have been in joint possession and enjoyment of the same. It is contended that pursuant to the execution of Power of Attorney, the mother of the plaintiffs Mrs. Balkis was permitted to be in occupation of the 1st floor portion of "A" schedule property with leave and licence of all the six co-sharers /co-owners. Taking advantage of the same, the said Power of Attorney executed a Lease Deed in favour of one Mr. V.M. Thandapani, which caused much prejudice to the original plaintiffs. It is contended that the original 5th defendant unilaterally sold 2/6th undivided portion of "A" schedule property to the original 6th defendant. According to the original 1st plaintiff, the unilateral division as well as sale of 1st floor of undivided share of the "A" schedule property by the original defendants 1 to 5 is not valid in law. It is further contended that the said 2/6th undivided portion conveyed to the original 6th defendant is referred to as "B" schedule property. According to the original plaintiffs, the limitation begins to run from the date on which the possession of the property was taken by the 6th defendant. It is the main contention of the original plaintiffs that the limitation is a mixed question of law and fact, since the date from which limitation begins to run is a triable issue. Hence, the original plaintiffs prayed for dismissal of the application.

5. The learned counsel appearing for the applicant/original 6th defendant submitted that the applicant / original 6th defendant had purchased 2/6th share in the suit property admeasuring 2 grounds and 1792 sq.ft., but the