RAJYASHREE CHAMARIA Vs. BIDYAPATI CHATTERJEE

JUDGEMENT

(1.) The present appeal has been preferred by the plaintiff in a suit seeking a decree for partition upon declaration that the plaintiffs are jointly entitled to 50 per cent share of the suit properties, a decree declaring that the defendant never acquired right, title and interest in the entire suit properties on the basis of the Deed of Family Settlement dated December 24, 1997 and for other ancillary reliefs. By the impugned deemed decree, the plaint was rejected under Order VII Rule 11(d) of the Code of Civil Procedure only on the ground of limitation.

(2.) Learned counsel appearing for the appellant contends that in Paragraph No.23 of the plaint, the cause of action has been pleaded to be the refusal, in the month of March, 2010, of the plaintiffs' claim of 50 per cent of the rent of the first floor of "Gayaram Building", tenanted to the Life Insurance Corporation of India, and rent of ground floor room of "Ramapada Bhawan", tenanted to Silver Arts, which were being collected by the defendants from the said tenants. The suit was filed in October, 2010, that is, within the limitation period of three years as contemplated under Article 59 of Part III of the Schedule to the Limitation Act, 1963.

(3.) It is further argued that the plaint does not specifically plead the plaintiffs' date of knowledge of the Deed of Family Settlement dated December 24, 1997 and, as such, the learned Trial Judge could not have rejected the plaint at the outset. The question of limitation, at best, is a mixed question of fact and law and there being nothing on the face of the plaint to show that the suit was barred by limitation, the impugned judgment and decree ought to be set aside.