IMPORTANT POINT
Rejection of plaint – Suit for partition cannot be thrown out in an application filed under Order VII Rule 11 of CPC on the ground of limitation.

JUDGMENT

P. Naveen Rao, J.—Heard learned senior counsel Sri E. Madan Mohan Rao, appearing for Sri M. Srinivas for appellant and learned counsel Sri L. Prabhakar Reddy for respondents.

2. This appeal is preferred against the order in I.A.No.515 of 2016 in O.S.No.69 of 2015 on the file of XII Additional District Judge, Ranga Reddy District at Vikarabad, filed under Order VII Rule 11 of Code of Civil Procedure, 1908 (for short, ‘CPC’) to reject the plaint. As dispute is in narrow compass, with the consent of both counsels, this appeal itself is taken up for final disposal. Parties are referred to as arrayed in the Trial Court.

3. According to plaintiff, his late father Ramakrishna Reddy owned Acs.53.23 guntas of land in Bakaram village. After his death, plaintiff and his brother late Sriram Reddy had oral partition and both are in joint possession of respective shares. After the demise of Sriram Reddy, his children and plaintiff have been cultivating the land in their respective shares i.e., Acs.26.32 and Acs.26.31 respectively. According to the plaintiff, from out of their share, the defendants sold Acs.22.00 leaving with them only Acs.4.32 guntas. Plaintiff sold Acs.5.00 guntas leaving with him Acs.21.31, by mutual understanding. Thus, in all Acs.26.23 extent of land remained with the family. According to plaintiff, in the revenue records name of his brother late Sriram Reddy and his sons are shown. Having noticed the same, plaintiff requested the children of late Sriram Reddy to take steps for correction of entries in revenue records and to enter his name in his lawful share. Plaintiff alleges that children of late Sriram Reddy hatched a plan and conspired to deprive the plaintiff’s legitimate share. Based on these assertions in the plaint, plaintiff prayed to grant decree of partition by allotting Acs.21.31 guntas and to deliver possession to him.

4. The defendants filed Interlocutory Application under Order VII Rule 11 of CPC contending that in paragraph-6 of the plaint, the plaintiff pleaded that there was an oral partition and each one of them has got Acs.26.32 acres. He further pleaded that the successors to late Sriram Reddy sold Acs.22.00 guntas of their shares and plaintiff sold Acs.4.32 guntas out of his share and in paragraph-7 plaintiff pleaded that all the sharers are in possession of their respective shares. Having regard to these pleadings, the plaintiff is admitting oral partition that took place long ago and, therefore, the second suit for partition is barred by law. It was further contended that as the plaintiff is admitting earlier partition and sharers sold part of their respective shares to the third parties and, therefore, it is no more permissible for the plaintiff to pay fixed court fee by claiming joint possession. It was further contended that plaintiff claimed ½ share in the suit land, but prayed to allot Acs.21.31 guntas towards his share, which is not valid. He valued the subject matter to Acs.21.31 guntas and, therefore valuation made and court fee paid is improper. As admitted by the plaintiff oral partition took place in the year 1983 and alleged sales were effected from 1982 on shares apportioned to late Sriram Reddy, which was within the knowledge of the plaintiff, whereas the present suit is filed after 35 years. Hence suit is barred by limitation. With these pleadings, the defendants prayed to reject the plaint.

5. The trial Court taking note of the assertions of the plaintiff that oral partition already took place and that the parties are in possession of their shares would show that oral partition is accepted and acted upon and, therefore, present suit for partition again is not maintainable. The trial Court observed that suit ought to have been filed for the entire property i.e., 53.23 guntas owned by late Ramakrishna Reddy, whereas the suit was filed only for 26.32 guntas. The trial Court observed that when part of the property was sold to third parties, and plaintiff also accepting the sa