The right to sue for partition arises from a demand for partition, and the suit is not barred by limitation if filed within three years of such demand.

J U D G M E N T

NEENA BANSAL KRISHNA, J.

1. Revision Petition under Section 115 read with Section 151 of the Civil Procedure Code, 1908 has been filed against the Order dated 14.07.2022, vide which the Application under Order VII Rule 11 of the CPC filed by the Petitioner (Defendant in the Main Suit), has been dismissed.

2. The Petitioner had sought rejection of the Suit for Partition filed by the Respondent (Plaintiff) on the grounds of the Suit was barred by Limitation and that the Court Fees paid was deficient .

3. According to the Revisionist, as per the averments in the Plaint, the Cause of Action arose on 02.08.2005 when Sh.Sukanti Banerjee, father of the parties, died at Delhi. The Respondent /daughter is a permanent resident of America who visits the country sparingly. Both the parties are living abroad and none were residing in the Suit Property wherein the mother of the parties Smt. Ava Banerjee, had been living till her demise on 11.11.2021. The present Suit for for Partition and Permanent Injunctionhas been filed in the year 2019.In terms of Article 69 and 110 of the Schedule to Limitation Act , the period for limitation for partition is three years and twelve years respectively. From the averments made in the Plaint itself, the Suit is patently barred by limitation.

4. It is further claimed that the Respondent (Plaintiff) has admittedly not been in possession of the property as per his own averments since 2018;thus, ad valorem Court Fee was required to be paid. His claim for constructive possession, is not tenable from the plaint itself and therefore, the Suit was liable to be rejected.

5. Learned Counsel on behalf of the Respondent had countered the averments made in the Application under Order VII Rule 11 of theCPC by asserting that the partition of the property was claimed by him for the first time on 09.03.2019 orally and thereafter, filed a Suit on 31.05.2019 i.e. within a period of three years from the date of accrual of cause of action. It is asserted that the Suit has been filed within limitation.

6. It is further submitted by the Respondent/Defendantthat he had gone to Jakarta and then to Singapore for the period between 2001 till July, 2018, but thereafter, he had returned to the Suit Property and resided with her to take care of his mother. However, on account of filing of malicious, frivolous Complaint under the Senior Citizens Act by the mother at the behest and under the influence of the Revisionist/Defendant, he had left the house in order to maintain peace and harmony.

7. He, thus, claimed that being the co-owner of the property in question, he was always in constructive possession. Moreover, during the pendency of the Suit, the mother has died on 11.11.2021 and now he is in constructive possession along with the Revisionist/Defendant and the Court Fee has been paid in accordance with law.

8. It is further asserted that the issues in regard to the limitation and court fee had already been framed and the same being a mixed question of fact and law can be adjudicated only after the evidence is recorded. It is, therefore, submitted that the learned Tribunal has rightly dismissed the Application under Order VII Rule 11 CPC .

9. Submissions heard and the record perused .

10. The Respondent/Plaintiff had filed a Suit for Partition and Permanent Injunction against his Sister and Mother, who are impleaded as Defendants.

The partition was sought in respect of the Suit Property bearing Flat No.31- B, First Floor, Pocket-B, Siddharth Extension, New Delhi and also in respect of funds in the sum of Rs.2,34,277.78 lying in UCO Bank, Supreme Court Compound, New Delhi in account No.20004, in respect of which Succession Certificate bearing No.467/2006 has been obtained by the Revisionist/Sister (Defendant) vide Order dated 17.01.2007 which apparently has been appropriated by her on the basis of Succession Certificate, without Notice to the Plaintiff. He had, thus, sought Partition of the Suit Property and the bank balan