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14. The plaintiffs submit that after hearing the arguments by both the parties on I.A. No.4 filed by defendant No.27 to 30, the Trial Court passed order on 12.07.2024, which is impugned herein, by rejecting the suit of the plaintiffs and allowing the application

1.A. No.4. filed by defendants No.27 to 30 on 27.11.2023 under Order VII Rule 11(a) and (d) read with Sec.151 of CPC, opining that the cause of action is not properly forthcoming and that great grand-children have filed the suit for partition pertaining to suit schedule properties denying execution of Sale Deeds and that suit is not filed in time as per Article 109 of Limitation Act and the plaint is cleverly drafted with an intention to file the suit to make unlawful gain which requires to be curbed at the initial stage and that, as per Proviso to Sec. 6 of Amended Hindu Succession Act, nothing contained in sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before 20th of December 2024.

16. On hearing the learned counsels for both sides, the trial Court passed the impugned order allowing the application filed under Order VII Rule 11 of CPC and rejected the plaint, which is under challenge.

17. Learned senior counsel appearing for the appellants- plaintiffs has seriously contended that the trial Court has committed an error in allowing the I.A. and rejecting the plaint by looking into the contentions taken by the respondents-defendants in the written statement. The trial Court has not properly considered the provisions of Articles 109 and 110 of Limitation Act (hereinafter referred to as 'Limitation Act') by relying upon Article 58 of the Limitation Act, which is not correct. The plaintiffs who are the joint family members of the deceased Boranna, who is the propositus to the family of the plaintiffs, have been excluded the plaintiffs from partition, and there is mixed question of law and facts. It is contended that as per Article 109 of the Act, any claim if made for a share in joint property must be made within 12 years from the date when exclusion from the property becomes known to the aggrieved legal heir. Therefore, it cannot be said that there was partition prior to 45 years in the year 1968 itself. It is not the case of the plaintiffs that there was partition and sale deed. They came to know about the same when panchayath was held in March 2023. The plaintiffs were not the parties in the said suit filed by the defendants. Even the trial Court by placing reliance upon the written statement averments, rejected the plaint which is not correct. It is further contended that as per Article 109 of Limitation Act, any claim if made for a share in joint property must be made within 12 years from the date when exclusion from the property becomes known to the aggrieved legal heir. As per Article 110 of the Limitation Act, exclusion of the family of the plaintiff in the partition of the suit shall be filed within 12 years from the date of knowledge of the plaintiff. Therefore, limitation is the mixed question of facts and law and the plaint cannot be rejected. The defendants have taken the contention that their names were entered in RTCs. Therefore, the partition was not correct. The RTCs do not confer any title over the property. It is contended that the sale deed is executed by the defendants and not by the father of the plaintiffs and therefore, how the suit is bad, is not mentioned by the trial court. The earliest partition deed was the oral partition. There are no written documents. Therefore, the same is to be proved by way of the trial. Hence, prayed for allowing the appeal and requested the matter to be reminded back to the trial court for the trial.

24. The main contention of the learned senior counsel for the plaintiffs is that the sale deed was not effected by the father of the plaintiffs for invoking the provision of Article 109 of the Limitation Act and 12 years limitation was available for the plaintiffs to challenge the partition from the date of their knowledge.

25. Articles 109 and 110 of the Act reads as under:

Article 109 of the Limitation Act

109. By a Hindu Twelve years When the governed by alienee takes Mitakshara law to possession of set aside his father's the property.

27. The Hon'ble Supreme Court in a recent judgment in the case of M/s SHAKTI BHOG FOOD INDUSTRIES LIMITED Vs. THE CENTRAL BANK OF INDIA AND OTHERS reported in AIR 2020 SC 2721 has held that the cause of action for filing the suit would consist the bundle of facts and the factum of the suit being barred by the limitation would be mixed question of facts and law and accordingly, has held that the rejection of plaint is improper.

The court should read the entire averments together in respect of the cause of action. In this case, the plaintiffs have stated that in the plaint that they came to know about partition through the panchayat held in March 2023. While demanding their share, the defendants have denied and not given any proper explanation. Subsequently, the plaintiffs verified the documents and came to know that there was alienation by Nanjundappa, the son of Boranna and RTCs were showing the name of the children of Boranna. Subsequently, one of the sons of Shivanna sold the property to the third parties without the knowledge of the plaintiffs. The plaintiffs also came to know about name of the respondents-defendants in the RTC and the alienation only in March 2023. As per the plaint averments, it is also mentioned that there was two suits filed by the defendants IN O.S. No.25590/2015 and O.S. No.8105/2022 where the plaintiffs were not made the parties in both the suits. It is not the case of the defendants or the plaintiffs that they are the parties to the suits filed in 2015 or 2022. In order to show that the plaintiffs are having knowledge about the selling of the property by Virupaksha under the alleged oral partition claimed by the defendants and in order to show that the suit is for partition barred by limitation, the trial court has considered Article 58 of the Limitation Act that the suit is required to be filed within three years for cancellation of sale deed. Whereas, the learned senior counsel for the plaintiffs has contended that the sale deed was not made by the father of the plaintiffs in order to seek cancellation within 12 years as per Article 109 of the Limitation Act. As stated above, Article 109 clearly says that if the alienation was made by the father of the plaintiffs and then within 12 years, the suit should be filed for cancellation of the deed. Admittedly, the father of the plaintiffs is not the vendor of the suit schedule property or alienated the property. Therefore, Article 58 is not applicable and even Article 109 is also not applicable. Under, Article 110 of the Limitation Act, when the plaintiffs are excluded in the partition, the suit should be filed within 12 years from the date of the knowledge. Therefore, as per the averments, they came to know of the partition in March 2023. The plaintiffs were not the parties to the earlier suits in O.S. No.25590/2015 and O.S. No.8105/2022. Therefore, it cannot be said the suit is barred by limitation. As held by the Hon'ble Supreme Court, the factum of suit being barred by limitation is mixed question of law and facts. On some ground of limitation or part of it, the plaint cannot be rejected. Therefore, the order of the trial Court under Order VII Rule 11(a) and (d) R/w Sec 151 of CPC cannot be sustainable in law.