A partition suit must disclose a cause of action and not be barred by limitation; failure to challenge a sale deed within the limitation period results in dismissal.

ORAL JUDGMENT

(PER: HON'BLE MR JUSTICE VENKATESH NAIK T.)

This appeal is filed by the appellants/plaintiffs challenging the judgment and decree dated 04.09.2018 passed by learned Senior Civil Judge and JMFC, Doddaballapur in O.S.No.93/2013.

For the purpose of convenience, the parties are referred to as per their ranking before the trial Court. The appellants are 'plaintiffs' and respondents are the 'defendants'.

2. The brief facts of the case are that the plaintiffs instituted a suit in O.S.No.93/2013 before the trial court against defendant Nos.1 to 6 for partition and separate possession and to determine 2/3^rd share in favour of the plaintiffs in respect of the suit schedule properties. Subsequently, defendant No.7 impleaded herself as respondent No.7 in the suit. Defendant No.7 had filed an interlocutory application I.A.No. V under Order 7 Rule 11 (a, b) r/w Section 151 CPC , to reject the plaint contending that there was no cause of action for the suit and the suit was barred by law. It was specific case of defendant No.7 that she had purchased suit schedule Item No.1 in the year 1971 and therefore there is no cause of action for the suit filed by the plaintiffs. Further, there is no allegation made in the affidavit of defendant No.7 accompanying the application for rejection of plaint with respect to Item Nos.2 and 3 of the suit schedule properties. Being aggrieved by the order dated 04.09.2018 and decree dated 04.09.2018 passed by the trial court, the appellants have preferred this appeal.

3. Heard Sri Sumanth, learned counsel representing Sri Madhukar M. Deshpande, learned counsel for the appellants.

4. Before the trial Court, defendant No.7 has taken the contention that plaintiffs have filed the suit in O.S.No.93/2013 for partition and separate possession of their share in the suit properties by suppressing the true facts and the suit was barred by law of limitation. The plaintiffs' grandmother Smt. Akkayamma, W/o. Doddachennappa along with her brother-in-laws Sri. Kempegowda, Sri. Chikkachennappa and Sri. Chennarayappa had sold suit schedule property in favour of husband of defendant No.7 by name Sri. Patel Narayanaswamy, S/o. Patel Munegowda under registered sale deed dated 30.06.1971 and the properties are situated at Thapasihalli village, Doddaballapur Taluk. After demise of the husband of defendant No.7, defendant No.7 continued with the possession and enjoyment of the suit schedule properties. The plaintiffs were not in possession of the suit schedule properties at any point of time. Therefore, the suit of the plaintiffs is barred by Section 6 of Hindu Succession(Amendment) Act, 2005 and the suit is also barred by law of limitation.

5. On the other hand, the plaintiffs have taken up the contention that no such sale deed was executed in favour of husband of defendant No.7 and thus her possession and title in respect of the suit schedule property has been denied by the plaintiffs. Considering the I.A. and objections filed by defendant No.7 and plaintiffs, the trial court allowed I.A.No.V filed by defendant No.7 and consequently, rejected the suit filed by the plaintiffs on the ground law of limitation and also hit by Section 6 of the Hindu Succession (Amendment) Act, 2005 and on the ground of no cause of action for the suit. Being aggrieved by the said order, the plaintiffs have preferred this appeal contending that the order passed by the trial court is contrary to material on record and opposed to the well established principles of law. It is contended that the suit was instituted for partition of Item Nos.1, 2 and 3 of the suit schedule properties. The case of defendant No.7 was that she purchased Item No.1 of the suit schedule property in the year 1971. Defendant Nos.1 to 6 have not filed written statement resisting the claim of the plaintiffs in respect of item Nos.2 and 3. Defendant No.7 is concerned with only Item No.1 of the suit schedule property, but the trial court without understanding the scope of the sui