SWATANTRA SUNEJA Vs. ANIL KUMAR

JUDGEMENT

(1.) The defendant no.2, in this suit for partition of three immovable properties namely (a) Property bearing Khasra No.531, Mundka Delhi -110 041 measuring 2000 sq. yds.; (b) Property bearing No.134 (Khasra No.5025), Timber Market Swarn Park, Mundka, Delhi -110 041; and, (c) Factory No.B-59, Phase-2 Mangolpuri Industrial Area Delhi measuring 200 sq. mtrs. consisting of Ground, First and Second floors seeks rejection of the plaint on three grounds i.e. (i) limitation; (ii) the common predecessor having died in the year 1995 i.e. prior to the amendment w.e.f. September, 2005 of the Hindu Succession Act, 1956; and, (iii) the jurisdiction of this Court being barred by the Delhi Land Reforms Act, 1954.

(2.) Qua the ground of limitation, the counsel for the defendant no.2applicant on enquiry states that Article 58 of the Schedule to the Limitation Act, 1963 applies. However upon being asked as to how the same, prescribing limitation for a suit for declaration, would apply to a suit for partition, the counsel instead of replying refers to Sangita Rehan Vs. Surinder Kishan Grover 218 (2015) DLT 305. A Single Judge of this Court therein was concerned with a suit for partition filed after 36 years after the demise of the common predecessor and after the property, of which partition was sought was sold. Relief thus, also of setting aside of the Sale Deed was sought. It was in the said context that Article 58 of the Schedule to the Limitation Act was applied and the plaint rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC). However that is not the position over here. This suit, though filed in the year 2016 by a daughter against who died in the year 1995, but her brothers, mother and sister for partition of properties left by the father as per the averments contained in the plaint, the properties have remained joint and the plaintiff claims to have in August, 2014 learnt of the brothers having got executed a Relinquishment Deed from the mother in July, 1999 with respect to her share in the property.

(3.) There is no limitation for a suit for partition inasmuch as there is no compulsion on the heirs of a common predecessor to seek partition, unless a case for ouster is made out. Reference in this regard may be made to Vidya Devi Vs. Prem Prakash (1995) 4 SCC 496 and Anita Kumari Gupta Vs. Ved Khushan 2014 SCC OnLine Del 2895 (DB). It is not the case of the plaintiff that the defendants, for a period of over 12 years prior to the institution of the suit, have been claiming adversely to the plaintiff and only in which situation could it have been said that the suit as per averments in the plaint itself is barred by time. Thus, no ground for rejection of the plaint on the ground of limitation is made out.