The rejection of a plaint under Order VII Rule 11(d) for being barred by limitation requires a full trial as limitation is a mixed question of law and fact, necessitating the recording of evidence.

Headnote:(A) Code of Civil Procedure, 1908 - Section 96 - Rejection of plaint - Appeal against order allowing application under Order VII Rule 11(d) - Plaintiff sought partition of joint family property - Trial Court rejected plaint as barred by time without considering evidence; court ruled limitation is a mixed question of law and fact, requiring trial - Recognized suit averments showing joint family funds were used for property purchase -

Result: Appeal allowed, impugned order set aside, and suit restored. (Paras 1, 19, 24, 26)

(B) Limitation - Mixed question of law and fact - The issue of limitation cannot be determined without recording evidence - The Court must examine plaint averments without considering defendant's contentions at this preliminary stage. (Paras 18, 25)

CAV JUDGMENT

(PER: HON'BLE MR JUSTICE S.G.PANDIT)

Plaintiff’s first appeal under Section 96 of the Code of Civil Procedure, 1908 , aggrieved by the order dated 29.11.2011 in O.S.No.7024/2005 on the file of the I Additional City Civil and Sessions Judge, Bengaluru City (for short, ‘Trial Court’), allowing I.A.No.8 filed by defendant Nos.3 and 4 under Order VII Rule 11(d) of CPC read with Section 35 of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short, ‘1958 Act’) and consequently rejecting the plaint as barred by time.

2. Parties would be referred to as they stood before the Trial Court. Appellant herein was the plaintiff and respondents herein were defendants before the Trial Court.

3. The Brief facts of the case are that, the plaintiff is the son of original defendant Nos.1 and 2. Defendant No.3 is the son of defendant No.4 and defendant No.4 is the plaintiff’s mother’s brother’s wife. The plaintiff’s suit is one for partition and separate possession of plaintiff’s share in the schedule property; for permanent injunction restraining defendant Nos.1 to 4 from selling, encumbering or alienating the schedule property contrary to the interest of the plaintiff; for permanent injunction restraining defendant Nos.1 to 4 from interfering with the peaceful possession and enjoyment of the schedule property; and also to declare that the sale of the suit property by second defendant in favour of 3^rd and 4^th defendants does not affect the right and interest of the plaintiff over the suit property and it is not binding on the plaintiff.

4. The suit averments would indicate that the marriage of first and second defendants took place in the year 1953 and the plaintiff was born to defendants No.1 and 2 in the year 1957. It further indicates that in the year 1960, plaintiff’s father i.e., defendant No.1 decided to separate himself from the plaintiff’s grandfather and plaintiff’s uncle. Accordingly, there was a partition between first defendant, his father and brother under a registered partition deed dated 10.07.1960. It is stated that immediately after the partition, father of the plaintiff i.e., defendant No.1 on behalf of the joint family consisting of the plaintiff and defendant Nos.1 and 2, from out of the joint family funds, purchased the suit schedule property. Further for convenience in management and for the purpose of tax, the property was purchased in the name of second defendant, mother of the plaintiff.

5. Further, it is averred that the suit schedule property was purchased within two months from the date of partition between the father of defendant No.1 and grandfather of plaintiff, from out of the funds which defendant No.1 received on partition. It is further stated that on purchasing the suit schedule property, a residential house was constructed out of the joint family funds. Further, the plaint would state that when the plaintiff was very young, differences between the first and second defendant arose and divorce proceedings were initiated between them which resulted in their divorce. It is stated that when divorce between first and second defendant took place, the plaintiff was aged about 10 years. Thereafter, the first defendant married another person by name Lakshmi and second defendant married another person by name Pratap Varde. From the second marriage, the second defendant has one son.

6. The appellant/plaintiff claims that he has a right and interest over the suit schedule property since it is joint family property and the said property has not been subject matter of partition between the plaintiff’s father and plaintiff. It is also stated that the plaintiff has been paying taxes and charges in respect of the suit schedule property and also paying electricity and water bills in respect of the suit schedule property. The plaintiff claims that he has appointed a caretaker to the suit schedule property to maintain it under his supervision. Further, it is stated that second defendant, mother had never disputed

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The rejection of a plaint under Order VII Rule 11(d) for being barred by limitation requires a full trial as limitation is a mixed question of law and fact, necessitating the recording of evidence.

Cases Referred (1)