M.P.RAMACHANDRA Vs. VIJAYASHREE

JUDGEMENT

(1.) Heard the petitioners counsel.

(2.) This matter is listed for admission. The challenge made in this revision petition is rejection of application filed under Order 7 Rule 11(d) which is numbered as I.A.No.2.

(3.) The main contention of the counsel appearing for the petitioners that Court below fails to consider the fact that suit is barred by limitation, since the very propositous died on 22/11/1976 and before his death, he has executed a Will dtd. 8/2/1975 and in the said Will, he has bequeathed the suit schedule property in favour of defendant Nos.1 and 2 and plaintiffs have no right at all and suit for partition filed on 1/7/2022 is barred by limitation and trial Court committed an error in dismissing the application. The trial Court having considered the grounds urged in the application comes to the conclusion that the defence of the defendant cannot be considered in an application filed under Order 7 Rule 11 and the other contention that suit is barred by limitation and hence comes to the conclusion that after framing the issues Court may obtain the evidence on the said issues and if Court may proceed with the case on the averments made in the written statement as well as affidavit along with the application and the same cannot be considered. It is also settled principle of law that only Court has to look into the averments of the plaint and not the defence. Whether suit is barred by limitation or not, is a mixed question of fact and law. Hence, I do not find any error committed by the trial Court in coming to such a conclusion, since the very ground urged is that, the very propositous died in the year 1977, but it is the contention that he had executed a Will in favour of defendant Nos.1 and 2.