ABDUL QUDDHOSE, J.

1. This appeal has been preferred by the appellants/plaintiffs against the order of the learned Single Judge dated 12.08.2016 allowing Application No.4391 of 2015 in C.S. No. 334 of 2015 filed by the respondents/defendants seeking rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure.

2. The appellants/plaintiffs filed the suit C.S.No.334 of 2015 against the respondents/defendants seeking the following reliefs:

“(a). Directing division of the plaint schedule properties into three shares by metes and bounds with reference to good and bad soil and allotting of 1/3rd share to the plaintiffs 1 to 7 herein jointly and put the same in plaintiffs possession.

(b) Granting permanent injunction, restraining the defendants, or any one claiming through them or authorized by them from in any manner intermeddling or encumbering or alienating or creating any mortgage, lease, charge or joint development in respect of the plaint schedule properties till the final partition takes.

(c) For appointment of an Advocate Commissioner to effect division of the plaint suit properties in the aforesaid manner.”

3. The reliefs sought for in the suit revolves upon a partition deed dated 31.05.1945 registered as document No.974 of 1945 in the Office of the Sub Registrar, Periamet, Chennai. The learned Single Judge after considering the plaint averments rejected the plaint for the following reasons:

(a) The suit is hopelessly barred by limitation;

(b) Instead of filing a suit for declaration of title, when a serious cloud has been raised over the title, the appellants have sought for partition simpliciter. Subsequent to the partition deed dated 31.05.1945, the parties have also acted upon the deed of partition.

(c) Even during the life time of Abdul Khader, the predecessor in title of the appellants/plaintiffs, there was no challenge to the partition deed dated 31.05.1945. After having entered into the partition deed dated 31.05.1945, the father of the first appellant/plaintiff viz., Abdul Khader died in the year 1952.

(d) A mere fact that the respondents/defendants have entered into a Joint Venture Agreement on 15.11.2012 with a third party cannot be a ground for cause of action for filing the suit.

(e) There is no explanation for seeking partition only for the schedule mentioned property in the plaint leaving others. The suit is also hit by the doctrine of partial partition.

4. Mr. R. Thiagarajan, learned counsel for the appellants/plaintiffs has submitted the following arguments:

(i) Limitation is a mixed question of fact and law and that cannot be a ground for rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure.

(ii) Under Muslim Law, the appellants/plaintiffs are tenants in common and the Law of limitation will not apply as in the instant case the suit schedule property still remains with the family members of the parties to the partition deed dated 31.05.1945.

(iii) Partial partition is inapplicable to Muslim Law;

(iii) the alleged oral Wasiath (Will), mentioned in the partition deed dated 31.05.1945 is not valid as the oral Wasiath (Will) was not executed in the presence of two male witnesses, as Mahoob Bi, a female was the executrix.

(iv) there is no actual division of the suit property by metes and bounds in accordance with the entitlement of the parties as the properties allotted under the partition deed to the six legal heirs of the late Hajee Mohamed Abdul Azeez Sahib were in the ratio of 1/8th, 1/8th, 1/8th, 1/4th, 1/4th and 1/4th which aggregates to 1 and 1/8th (it should be actually 1) and consequently the partition deed dated 31.05.1945 is incorrect and improper.

5. During his arguments, the learned counsel for the appellants/plaintiffs took us through various averments contained in the plaint. He also relied upon the decisions reported in (a) AIR 1963 Pat 375 in the case of S.M.A. Samad and Others v. Shahid Hussain and others and (b)AIR 1971 Pat 385 in the case of Mt. Haliman and others