R.DEVDAS J., (ORAL):

The petitioners are defendants No.1 to 3 in O.S. No. 17/2020

on the file of the learned II Addl. Sr. Civil Judge & JMFC, Hubballi

(for short ‘the trial Court’) and they are aggrieved by the impugned

order dated 09.11.2021 passed in I.A. No. III. The petitioners shall

be referred to as defendants and the respondents shall be referred

to as plaintiffs for the sake of convenience.

I.A. No. III was filed by the defendants under Order VII Rule

11(a) and (d) read with Sec. 151 of CPC praying the trial Court to

reject the plaint on the ground that the suit is barred by limitation by

reason of Sec. 27 of the Limitation Act, 1963. The said application

having been rejected, the defendants are before this Court.

Learned Senior Counsel Sri Shreevatsa, appearing for the

defendants would submit that the plaintiffs are the full sisters of

defendants No.2 and 3 and they filed the instant suit seeking

partition and separate possession of the share of each of the

plaintiffs in the suit property. The plaintiffs have also sought for a

declaration that the registered relinquishment deed dated

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29.12.2004 executed by the plaintiffs in favour of defendants No.1

to 3 is not binding on the share of the plaintiffs.

Learned Senior Counsel submits that earlier the linear

descendents of Sri Narayansa had filed O.S. No. 178/2005 wherein

all the parties herein were arrayed as defendants, including the

plaintiffs. Although the present suit schedule property bearing CTS

No. 470/1 situated at Ward No.3 ad-measuring 3 acres 15 guntas,

5 sq.yards situated at Marian Timmasagar village, Karwar Road,

Hubballi, was also part of the suit schedule properties in O.S. No.

178/2005, nevertheless the claim in respect of that property was

given up. The plaintiffs herein were placed exparte and they did

not contest the suit. However, after the judgment dated 16.02.2016

was rendered in O.S. No. 178/2005, original plaintiffs in O.S. No.

178/2005 filed R.F.A. No. 100186/2016 before this Court. In the

said appeal the plaintiffs sought to file cross-objections. It was

sought to be contended at the hands of the plaintiffs that they came

to know about the fraud that was played upon them by defendants

No. 5, 10 and 11, i.e., their full brothers and uncle in getting a

relinquishment deed executed in their favour on misrepresenting

that they were called to the Sub-Registrar’s office stating that they

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had to execute a power of attorney. However, objections were filed

to the cross objections, mainly contending that Court fee was

required to be paid as was paid on the plaint. The plaintiffs were

directed to pay Court fee. Aggrieved, the plaintiffs approached the

Hon’ble Supreme Court in SLP No. 33257/2017. Observations

were made by the Hon’ble Apex Court and liberty was granted to

the plaintiffs to file a fresh suit and get their rights adjudicated.

Taking note of the said orders passed by the apex Court, this Court

also permitted the plaintiffs to file a fresh suit. Consequently, O.S.

No. 17/2020 was filed at the hands of the plaintiffs.

Learned Senior Counsel would therefore contend that the

plaintiffs cannot deny the fact that they knew about execution of the

relinquishment deed dated 29.12.2004, apparently as far back as

2016 when it was openly contended by the plaintiffs that they came

to know about the fraudulent execution of the relinquishment deed

and therefore they sought to file cross objection in R.F.A. Cr. Ob.

No. 100005/2016. It is therefore the contention of the defendants

that when admittedly the plaintiffs expressed that they came to

know about the relinquishment deed in the year 2016, after the

judgment and decree was rendered in O.S. No. 178/2005, the

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cause of action for seeking a declaration that the registered

relinquishment deed dated 29.12.2004 is not binding on the share

of the plaintiffs commenced at least in the year 2016. Therefore,

having regard to Sec.27 of the Limitation Act read with Article 59

where th