JUDGMENT :

The present Appeal Suit has been filed against the order and decree passed by the learned II Additional District Judge, Vellore @ Ranipet in IA No.4 of 2020 in OS No.95 of 2019 dated 24.03.2022.

2. The appellants are plaintiffs and the respondents are defendants in the suit. The suit was instituted for declaration and permanent injunction and for recovery of possession.

3. It is not in dispute that the defendants in the suit filed written statement and thereafter an Interlocutory Application was filed in IA No.4 of 2020 for rejection of plaint under Order VII, Rule 11 of the Code of Civil Procedure.

4. The Trial Court adjudicated the issues and allowed the application and the plaint was rejected. Thus, the appellants have chosen to prefer the present appeal Suit.

5. The learned counsel for the appellants-plaintiffs mainly contended that the appellants herein earlier filed suit for partition, which was dismissed and the order of the Trial Court was confirmed in the appeal suit.

6. There is an observation in the judgment of the Trial Court as well as in the First Appellate Court order that the title of the plaintiffs is denied by the defendants and they are in possession. In such a situation, the plaintiffs ought to have filed suit for title and recovery of possession from the third defendant therein and not for partition.

7. The Trial Court formed an opinion that the title of the third defendant therein cannot be decided in the suit and the question to be determined is the entitlement of the plaintiffs' share in the suit schedule property. However, the plaintiffs are out of possession and therefore, the relief of partition cannot be granted.

8. In view of the said observation, the appellants herein have chosen to file fresh suit in OS No.95 of 2019 for declaration, permanent injunction and for recovery of possession. Thus the earlier suit is not a bar for institution of fresh suit. Since the appellants are claiming title in respect of the suit schedule property and in respect of the plaint averments, the respondents-defendants filed detailed written statement denying the averments.

9. While-so, the Trial Court ought to have tried the suit on merits and in accordance with law. However, the Trial Court merely on the ground that there is a delay in institution of the suit rejected the plaint on the ground of limitation. More-so, the Trial Court relied on the earlier suit for partition filed by the appellants herein.

10. In respect of the findings in this regard, the limitation in the present case is to be adjudicated with reference to the facts as well as the events. It is a mixed question of facts and law and therefore, an adjudication becomes imminent. Whenever there is a mixed question of fact and law, it is preferable to try the suit by framing the issues rather than rejecting the plaint under Order VII, Rule 11 of the Code of Civil Procedure.

11. All suits are to be tried on merits. An opportunity of adjudication need not be denied to anyone of the parties, merely based on certain technical grounds. No doubt, the limitation point can be raised as a preliminary issue. However, in the present case, the appellants have earlier instituted suit for partition and the present Appeal Suit is in continuation of the earlier suit. Therefore, the mixed question of fact and law are to be decided for appreciation of the issues raised between the parties.

12. Regarding dismissal of the earlier suit, it was a suit for partition wherein the Court made a finding that there is title dispute between the parties which necessitated the appellants to file fresh suit for declaration and recovery of possession.

13. All the complex facts and circumstances are to be adjudicated with reference to the documents and evidences and the Trial Court ought not to have arrived a conclusion that the plaint is to be rejected on these grounds.

14. The power under Order VII Rule 11 of CPC is to be exercised sparingly by the Courts. All the suits are to be adjudicated