Case Note & Summary
The appellant, Shivaji Gopal Kurhade, filed a suit for partition and separate possession of ancestral agricultural land against his brothers and their family members. The trial court rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908, on the ground that the suit was barred by limitation under Article 65 of the Limitation Act, 1963. The appellant appealed to the Bombay High Court. The High Court considered the issue of whether a suit for partition is barred by limitation when the plaintiff is in joint possession of the property. The court held that a co-sharer in joint possession of ancestral property has a continuing right to seek partition, and such a suit is not barred by limitation. The court also allowed an application for additional evidence under Order 41 Rule 27 CPC to demonstrate the ancestral nature of the property and the plaintiff's joint possession. The High Court set aside the trial court's order and restored the suit for trial on merits.
Headnote
A) Civil Procedure - Rejection of Plaint - Order 7 Rule 11 CPC - Suit for Partition - Limitation - The trial court rejected the plaint on the ground that the suit was barred by limitation under Article 65 of the Limitation Act, 1963. The High Court held that when a co-sharer is in joint possession of ancestral property, the suit for partition is not barred by limitation as the right to partition is a continuing right. The court set aside the rejection and restored the suit. (Paras 1-10) B) Civil Procedure - Additional Evidence - Order 41 Rule 27 CPC - The appellant sought to produce additional evidence to show that the property was ancestral and that he was in joint possession. The High Court allowed the application, holding that such evidence was necessary for just adjudication of the dispute. (Paras 11-15)
Issue of Consideration
Whether the suit for partition is barred by limitation when the plaintiff is in joint possession of the ancestral property, and whether the trial court erred in rejecting the plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the appeal, set aside the trial court's order rejecting the plaint, and restored the suit for partition to the trial court for adjudication on merits. The court also allowed the application for additional evidence.
Law Points
- Partition suit
- limitation
- joint possession
- ancestral property
- Order 7 Rule 11 CPC
- Order 41 Rule 27 CPC
- additional evidence
