A suit claiming partition is barred by limitation if filed years after the right to claim is acknowledged, as evident from previous relinquishments.

JUDGEMENT

1. This Civil Revision Application is filed under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘Code’ for short) in which the applicants – original defendant Nos. 1 to 13 have challenged the order dated 02.04.2013 passed by the 14th Additional Senior Civil Judge, Vadodara below Exh.13 in Regular Civil Suit No.482 of 2011.

2. Heard learned advocate Mr. Rashesh Rindani for the applicants and learned advocate Mr. M.D.Chauhan for respondent No.1 – original plaintiff.

3. It is submitted by learned advocate for the applicants that respondent No.1 – original plaintiff has filed Regular Civil Suit No.482 of 211 before the Principal Senior Civil Judge, Vadodara contending that the suit properties are the ancestral properties of deceased Naranbhai Ramdas Patel and therefore as a daughter of the deceased, plaintiff is having her share in the suit property and consequently partition decree is also prayed. It is submitted that the predecessor of the parties i.e. Naranbhai Ramdas Patel expired on 30.10.1987 and after his death, entry No.2576 came to be mutated in the revenue record effecting the names of the heirs of the deceased including the plaintiff and defendants.

Thereafter, the daughters of the deceased Naranbhai Ramdas Patel have relinquished their share in view of the family arrangement and therefore entry No.2577 came to be mutated with regard to the same. It is submitted that the respondent No.1 – original plaintiff challenged the said entry by filing Revenue proceedings before the Deputy Collector i.e. R.T.S. Appeal Nos. 54 of 1990 and 60 of 1990. It is submitted that the Deputy Collector disposed of the said appeals by observing that the respondent No.1 can approach the Civil Court since the dispute involved in the said appeals are of civil nature.

Thereafter, the respondent No.1 – original plaintiff has filed the suit in the year 2011.

4. It is submitted that notices/summons were issued to the original defendants and the present applicants – original defendant Nos. 1 to 13 have filed an application at Exh.13 under Order VII, Rule 11 of the Code in which it has been mainly stated that as the plaintiff has relinquished her rights in the suit property, no cause of action has arisen in her favour. It is further stated that suit is barred by the law of limitation and there is delay of more than 23 years in filing the suit. It is, therefore, urged that plait be rejected. Learned advocate for the applicants would submit that the trial Court, vide impugned order dated 02.04.2013, rejected the said application mainly on the ground that the question of limitation is not only a pure question of law but a mixed question of law and fact and whether the plaintiff is having any right, title or interest in the suit properties can be decided during the course of trial and without adducing the evidence, such question cannot be decided at this stage. The applicants have, therefore, filed the present application challenging the said order.

5. Learned advocate Mr. Rindani thereafter submitted that considering the averments made in the plaint itself, it is clear that the suit is clearly barred by the law of limitation and therefore the trial Court ought to have rejected the plaint only on this ground. It is