Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Online)(Kar) 26207

THE HIGH COURT OF KARNATAKA
Jayant Banerji, K. V. Aravind, JJ
Uma Ramaiah – Appellant
Versus
Saraswathi Gopinath – Respondent
REGULAR FIRST APPEAL NO.254 OF 2013

Advocates:
For the Appellants/Petitioners: M.S. Varadarajan
For the Respondents: C.M. Nagabhushana, K.P. Asokumar

The issue of limitation in a suit for partition involving co-owners is a mixed question of fact and law that cannot be summarily decided as a preliminary issue without a full trial and evidence, as it requires determining the specific date of alleged denial of title.

Headnote:(A) Limitation Act, 1963 - Article 113 - Residuary provision - Applicability to suit for partition - Limitation is a mixed question of fact and law which cannot be determined as a preliminary issue without evidence. (Para 24)

(B) Civil Procedure Code, 1908 - Order VII Rule 11 - Rejection of plaint - Limitation - When the suit is based on complex facts regarding title, adverse possession, and status as co-sharers, plea of limitation must be adjudicated after trial and recording of evidence rather than as a preliminary issue. (Paras 25, 26)

Facts of the case:
The appellants filed a suit for partition and separate possession of property, claiming to be co-sharers of the ancestral property. The trial court dismissed the suit as barred by time after considering an issue of limitation as a preliminary matter, relying on the defendants' contentions regarding the existence of a prior will and previous litigations. Appellants appealed against this dismissal, arguing that for a suit for partition among co-sharers, the period of limitation does not strictly commence without evidence of clear exclusion or denial of title.

Findings of Court:
The court held that determining whether a suit for partition is time-barred depends on establishing when the right to sue accrued and whether there was an effective denial of the plaintiffs' title. Since these are mixed questions of fact and law involving claims of co-ownership and alleged ouster, the court cannot decide the issue of limitation summarily without the parties leading evidence.

Issues: Whether the suit for partition and separate possession was barred by the period of limitation and whether the trial court could determine this as a preliminary issue without evidence.

Ratio Decidendi: The court ruled that questions of limitation in partition suits involving claims of joint family property are mixed questions of fact and law. A trial court should not dismiss a suit at a preliminary stage under the plea of limitation without allowing parties to establish their claims through evidence, as the accrual of the right to sue requires proving specific knowledge of exclusion or open denial of title.

Result: Appeal allowed. Matter remanded to the trial court for trial and determination of the limitation issue along with other issues after evidence is led.

Table of Content
1. background of the suit and procedural history. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7)
2. defendants' contentions regarding limitation and title. (Para 8 , 9 , 10 , 11)
3. trial court's rationale for dismissing suit as time-barred. (Para 12 , 13 , 14 , 15 , 16)
4. limitation as a mixed question of fact and law. (Para 17 , 18 , 19 , 21)

CAV JUDGMENT

(PER: HON'BLE MR. JUSTICE JAYANT BANERJI)

This plaintiffs’ appeal is filed seeking to set aside the judgment and order dated 07.11.2012 passed by XXII Additional City Civil Judge, Bengaluru in O.S.No.6732/2006 whereby, while deciding issue No.11 which is “Whether the suit is barred by time?”, the trial Court observed that the suit is barred by time and consequently the suit was dismissed.

2. It appears from the record that earlier, by means of an order dated 22.09.2011, the trial Court had decided the aforesaid issue No.11 holding that the suit is not barred by time and answered issue No.11 in negative. The order dated 22.09.2011 was challenged in an appeal by the defendants successfully before this Court and the matter was remanded to the trial Court to decide the issue afresh. Thereafter, by the impugned order dated 07.11.2012, it was held that the suit was barred by time and the suit was accordingly dismissed.

3. The plaintiffs filed a suit seeking a decree of partition by metes and bounds and for separate possession of the plaintiffs' 17/24th share in the suit schedule property, by holding that the alleged Will dated 03.03.1956 is not binding on the plaintiffs. Further prayer was made for granting mandatory injunction to render accounts, to pay money after reconciling the accounts, to deposit the rents in respect of the schedule property before the Court, prohibitory injunction for restraining the defendants from alienating, altering, encumbering or creating any third party rights in respect of the suit schedule property and for award of costs of the suit. The suit schedule property is described as follows:

“SCHEDULE PROPERTY

All that piece and parcel of the Immovable property bearing Municipal No.495, situated at Jamma Masjid Road also called as Old Poor House Road, Bangalore within the limits of Ward No.79 of Bangalore Mahanagara Palike, Bangalore, comprising of site dimension as per the Sketch and in all measuring 735.4 Sq.,mts., in area and is bounded on:-

East By : Private Property

West By : O.P.H. Road

North By : Private Property, and

South By : private Property.

Comprising of Multi Storied commercial building containing tenements used for Restaurants and lodging.”

4. The plaint case to the extent it is relevant for purpose of decision of the instant appeal is as follows:

That plaintiff Nos.1 to 4 are the children of late Sri B.R.Ram, son of late B.C.Ramalingam. Plaintiff Nos.1 and 2 are stated to be unmarried. The said Sri B.R.Ram had a son by the name of Sri Gopinath, who had died leaving behind him defendant Nos.1 to 3 as his heirs. The said Sri B.R.Ram had one more daughter by the name of Smt.Shara Subbu, who expired on 13.02.2002, leaving behind her husband- plaintiff No.5. It was stated that late Sri B.C.Ramalingam had acquired an immovable property bearing No.495, Old Poor House Road, also called as Jamma Masjid Road, Bangalore, which is the suit schedule property through a registered partition deed dated 04.07.1940. Sri B.C.Ramalingam died intestate, leaving behind his only son Sri.B.R.Ram. Sri B.R.Ram inherited the suit schedule property and he died intestate on 30.09.2001 leaving behind the plaintiffs and the defendants as heirs in respect of the properties.

5. It is stated that the suit schedule property had been let out during the lifetime of Sri B.R.Ram to one Sri V.Ramamurthy for a period of thirty seven years. It is stated that the scheduled property is occupied by the tenant whose leasehold right would expire on 31.12.2010. It is stated that the suit schedule property continues to be in the lawful and joint possession of the plaintiffs and the defen

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2026 Supreme(Online)(Kar) 26207

THE HIGH COURT OF KARNATAKAJayant Banerji, K. V. Aravind, JJUma Ramaiah – AppellantVersusSaraswathi Gopinath – RespondentREGULAR FIRST APPEAL NO.254 OF 2013

The issue of limitation in a suit for partition involving co-owners is a mixed question of fact and law that cannot be summarily decided as a preliminary issue without a full trial and evidence, as it requires determining the specific date of alleged denial of title.

Cases Referred (5)

THE HIGH COURT OF KARNATAKA
Jayant Banerji, K. V. Aravind, JJ
Uma Ramaiah – Appellant
Versus
Saraswathi Gopinath – Respondent
REGULAR FIRST APPEAL NO.254 OF 2013