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Gauhati High Court
CRP/11/2024 on 14 July, 2025
GAHC010003782024
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
CRP No. 11/2024
1. Hardeep Singh Matharu,
S/o Late Dewan Singh.
2. Kamaljit Singh Matharu,
S/o Late Darshan Singh.
Both Sl. No.1 and 2 are permanent residents of
Tahel Singh Nagar, PO-Rajabari,
Jorhat-785014, PS-Jorhat,
Dist.-Jorhat, Assam.
3. Purab Kaur,
W/o Late Amarpal Singh Matharu (S/0 Lt. Dewan Singh).
4. Mayher Kaur Matharu,
D/o Late Amarpal Singh Matharu (S/o Lt. Dewan Singh).
Both Sl.No.3 and 4 are residents of
Evanston, Illinois, USA.
......Petitioners/Defendants.
-Versus-
1. Sukhjit Kaur,
D/o Late Sukhdev Singh & Late Balwant Kaur.
2. Manjit Singh,
S/o Late Sukhdev Singh & Late Balwant Kaur.
3. Injeet Singh Marwah,
S/o Late Sukhdev Singh & Late Balwant Kaut.
All are permanent residents of
Tahel Singh Nagar, PO-Rajabari,
Jorhat-785014.
......Respondents/Plaintiffs.
CRP 11/2024 Page 1 of 14
BEFORE
HON’BLE MR. JUSTICE ROBIN PHUKAN
For the Petitioner : Mr. A. Saikia,
Mr. S. Dihingia,
Mr. D. Borah. ……Advocates.
For the Respondent : Mr. M.J. Bordoloi. ……Advocate.
Date of Hearing : 24.06.2025
Date of Judgment : 14.07.2025
JUDGMENT AND ORDER
Heard Mr. A. Saikia, learned counsel for the petitioners and also
heard Mr. M.J. Bordoloi, learned counsel for the respondents.
2. In this petition, under Article 227 of the Constitution of India read
with Section 115 of the Code of Civil Procedure, 1908, the petitioners
have challenged the order dated 09.10.2023 passed by the learned Civil
Judge (Sr. Division), Jorhat, in Misc.(J) Case No.28/2019 in Title Suit
No.21/2016.
3. Mr. Saikia, learned counsel for the petitioners submits that the
respondents herein as plaintiffs instituted a title suit, being Title Suit
No.21/2016 for declaration of alleged partition deed which may have
been executed by the petitioners/defendants without the consent of the
plaintiffs and proforma defendant No.9 or their mother is void ab initio
and subsequent/alienation mutation on the strength of the said deed is
void and liable to be cancelled and also for a decree for confirmation of
CRP 11/2024 Page 2 of 14
right, title and interest of the plaintiffs and proforma defendant No.9 to
the extent of 1/5th share in each and every dags of suit patta
land/property as detailed in the schedule and for a decree for declaring
plaintiffs’ and proforma defendant No.9’s right, title over the Schedule-A
land and for issuing preliminary decree and precept for partitioning
plaintiffs’ and proforma defendant No.9’s 1/5th share of the Schedule-A
property out of Schedule-C property and also to appoint commission for
accessing the rent and profits of Schedule-C property and for
appointment of Commissioner in the District Collector under Order 20
Rule 18 CPC for partitioning the suit land entitled by the plaintiffs and
proforma defendant No.9 with delivery of plaintiffs’ share in metes and
bounds and also for final decree and permanent injunction. In the said
title suit, the petitioners herein have filed a petition under Order 7 Rule
11(d) of the CPC on 04.04.2019, upon which Misc.(J) Case No.28/2019
was registered and thereafter, the petitioner Nos.3 and 4 also filed similar
petition on 26.07.2022 and thereafter, hearing both the parties, the
learned Civil Judge (Sr. Division), Jorhat (hereinafter referred to as the
trial Court) was pleased to dismiss the petition.
4. Mr. Saikia, learned counsel for the petitioners submits that a bare
perusal of the plaint reveals that the title suit is barred by the law of
limitation and it has no viable cause of action or application of Hindu
Succession Act, 1956 and that the respondents/plaintiffs have sought to
create an illusory cause of action on 1/5th share of both of their maternal
grandparents’ estates based on the death of their mother Balwant Kaur
on 07.09.1972 and Tahel Singh died on 08.11.1955 and nowhere in the
plaint, or in the genealogy filed and Tahel Singh died over six decades
before the filing of the suit and that the parties to the suit are governed
by the Mitakshara School of Hindu Law and at the time of Tahel Singh’s
CRP 11/2024 Page 3 of 14
death, he was survived by his wife Dhan Kaur, their sons Dewan Singh
and Darshan Singh, their married daughter Nant Kaur and their two
unmarried daughters Balwant Kaur and Jaswant Kaur. Further, the Hindu
Succession Act, 1956 under which the respondents/plaintiffs made their
claim, had not even come into existence when Tahel Singh died. And
according to the prevailing law, his legal heirs with a right to inherit his
moveable and immoveable property, were solely his wife Dhan Kaur and
his two sons Dewan Singh and Darshan Singh and in view of Article 65(b)
of the Limitation Act, 1963, the statute of limitations for Balwant Kaur to
challenge alienation of her interest, if any, in her father’s estate expired
in 1967 i.e. 12 years after the death of her father and the plaintiffs have
not shown any proof that their mother Balwant Kaur ever challenged the
succession of her father Tahel Singh during her lifetime and throughout
this time, Dhan Kaur, Dewan Singh and Darshan Singh continued to
enjoy uninterrupted peaceful possession and use of all the suit properties
inherited by them from Tahel Singh without interference from any
quarter.
5. Mr. Saikia, learned counsel for the petitioners further submits that
the respondents/plaintiffs also claimed their share of their mother
Balwant Kaur’s 1/5th share in the assets of their maternal grandmother,
Dhan Kaur, who suffered demise on 20.12.1971 and by suppressing this
fact in the plaint that their father Sukhdev Singh has already relinquished
rights on behalf of his minor children and himself to Balwant Kaur’s 1/5 th
share in the assets of her mother Dhan Kaur vide a duly registered deed
dated 23.09.1972 and that the limitation for any child of Balwant Kaur to
challenge the alienation of their right by their father, even if born the
year that she died, expired in 2002, but the suit was filed only in the year
2016 and that the learned Trial Court on erroneous assumption of the
CRP 11/2024 Page 4 of 14
facts and the law dismissed the petition filed by the petitioners under
Order 7 Rule 11 of the Code of Civil Procedure and under such
circumstances, the impugned order so passed is unsustainable and
therefore, Mr. Saikia has contended to allow this petition. Mr. Saikia has
referred following decisions in support of his submission:-
(i) Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra)
Dead Through LRs & Ors., reported in (2020) 7 SCC
366;
(ii) Raghwendra Sharan Singh v. Ram Prasanna Singh
(Dead) By LRs., reported in (2020) 16 SCC 601; and
(iii) N.V. Srinivasa Murthy & Ors. v. Mariyamma (Dead)
By Proposed LRs. & Ors., reported in (2005) 5 SCC
548.
6. Per contra, Mr. Bordoloi, learned counsel for the respondents has
vehemently opposed the petition. Mr. Bordoloi submits that the title suit
is not barred by the law of limitation and as such, the same being filed
under Order 7 Rule 11(d) of the CPC was rightly dismissed by the learned
Trial Court. Mr. Bordoloi further submits that a perusal of the plaint
enclosed with the petition as Annexure-2 discloses the cause of action
and at no point of time the material facts has been suppressed by the
respondents herein. Mr. Bordoloi further submits that the suit was filed
for partition of ancestral property and as such, the period of limitation will
not be applicable and the right of the respondents never extinguished at
any point of time because it is their ancestral property and there is no
limitation for partition suit and the issues raised in this petition are matter
of trial as the limitation is a mixed question of facts and law and the
decisions referred by Mr. Saikia, are not applicable in all force in the given
facts and circumstances of this case. Under such circumstances, it is
CRP 11/2024 Page 5 of 14
contended to dismiss the petition. Mr. Bordoloi has also referred following
decisions in support of his submission:-
(i) Mongia Realty and Buildwell Private Limited v.
Manik Sethi, reported in (2022) 11 SCC 572;
(ii) Chhotanben & Anr. v. Kiritbhai Jalkrushnabhai
Thakkar & Ors., reported in (2018) 6 SCC 422; and
(iii) Shri Narender Nath v. Smt. Krishna Gupta & Ors.
reported in 2017 SCC OnLine Del 9060;
7. Having heard the submission of learned counsel for both the parties,
I have carefully gone through the petition and the documents placed on
record and also perused the impugned order dated 09.10.2023 and also
the plaint of the Title Suit No.21/2016, which is being enclosed with the
petition as Annexure-2.
8. It is to be noted here that while dealing with the issue, the learned
Trial Court in the order dated 09.10.2023, has observed as under:-
“The plaintiffs’ suit is primarily for declaration and
permanent injunction.
The plaint reveals that the OPs as plaintiffs have sought
a decree for confirmation of right, title and interest of plaintiffs
and proforma defendant No.9 to the extent of 1/5th share in
each and every dag of the suit patta as described in Schedule-
A to the plaint.
As far as the rejection of plaint is concerned, the
sustainability, as such, has to be decided on the avermentCRP 11/2024 Page 6 of 14
made in the plaint and one has to treat every averment in the
plaint as factually true.
So far the suit being barred by law of limitation is
concerned, limitation itself is a mixed question of fact and law
and the question involves a mixed question of law and fact
may require not only examination of the plaint, but also other
evidence, but the said question cannot be determined at this
stage.
Hence, it cannot be held, as of now that the suit is
barred by law of limitation and thereafter, dismissed the
petition.”
9. A perusal of the Order 7 Rule 11 of the C.P.C. reveals that it
mandates rejection of a plaint in the following cases :-
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the
plaintiff, on being required by the Court to so
correct the valuation within a time to be fixed
by the Court, fails to do so;
(c) Where the relief claimed is properly valued, but
the plaint is written upon paper insufficiently
stamped, and the plaintiff, on being required by
the court to supply the requisite stamp paper
within a time to be fixed by the Court, fails to
do so;
(d) Where the suit appears from the statement in the
plaint to be barred by any law;
CRP 11/2024 Page 7 of 14
(e) Where it is not filed in duplicate; and
(f) Where the plaintiff fails to comply with the
provisions of Rule 9?”
10. It is to be noted here that Hon’ble Supreme Court has dealt with
the Order 7 Rule 11 of the C.P.C. in the following decision:-
(i) Raghabendra Sharan Singh vs. Ram Prassana Singh
(Dead by Legal Representative), reported in (2020) 16
SCC 601, wherein it has been held that considering the
averments in the plaint if it is found that the suit is clearly
barred by the law of limitation, the same can be rejected in
exercise of power under Order 7 Rule 11 (d) of the C.P.C.
(ii) Saleem Bhai and Others vs. State of Maharashtra
and Others, reported in (2003) 1 SCC 557, wherein it has
been held that with reference to Order 7 Rule 11 of the
C.P.C. that the relevant facts which need to be looked into
for deciding an application there under are the averments in
the plaint.
(iii) Liverpool and London S.P. and I Association
Limited vs. M.V. Sea Success, reported in (2004) 9
SCC 512, wherein it has been held that the courts, while
dealing with such an application seeking rejection of a plaint,
the courts have to determine whether the plaint discloses a
cause of action by scrutinizing the averments made in the
plaint, read in conjunction with the documents relied upon.
(iv) Sopan Sukhdeo Sable vs. Assistant Charity
Commissioner, reported in (2004) 2 SCC 137, wherein itCRP 11/2024 Page 8 of 14
has been clarified that while making such a determination,
courts would have to disregard the pleas taken by the
defendant in the written statement and decide the
application for rejection of the plaint on merit. Therefore, it
was clarified that while determining any application filed
under Order 7 Rule 11 of the C.P.C., the courts should
restrict itself to the plaint and should not go into the detail
facts as provided under the written statement or even the
application filed under Order 7 Rule 11 of the C.P.C.
11. In the instant case, it appears from the petition filed by the
petitioners, being Petition No.1105/2019, that a contention was being
made that the suit is barred by the law of limitation as Balwant Kaur
suffered demise on 07.09.1972 and Tahel Singh died on 08.11.1955 and
Dhan Kaur died on 20.12.1971 and the title suit was instituted on
11.05.2016 and according to Article 65(b) of the Limitation Act, the
statutory limit for Balwant Kaur to challenge alienation of her interest, if
any, in her father’s estate elapsed on 1967, being 12 years after death of
her father.
12. But, it appears from the prayer being made in the plaint that it was
a partition suit though some other reliefs are also being claimed including
right, title and interest by the respondents/plaintiffs herein. Now, the
question to be seen is whether the law of limitation is applicable in a
partition suit.
13. This issue came before the Hon’ble Supreme Court for consideration
in the case of Vidya Devi v. Prem Prakash, reported in (1995) 4
SCC 496, under Delhi Land Reforms Act, 1954 wherein, a three Judge
Bench of Hon’ble Supreme Court has held as under:-
CRP 11/2024 Page 9 of 14
“20. The legislature has not prescribed any period
of limitation for filing a suit for partition
because partition is an incident attached to the
property and there is always a running cause of
action for seeking partition by one of the co-
sharers if and when he decides not to keep his
share joint with other co-sharers. Since the filing
of the suit is wholly dependent upon the will of
the co-sharer, the period of limitation, specially
the date or time from which such period would
commence, could not have been possibly provided for
by the legislature and, therefore, in this Act also
a period of limitation, so far as suits for
partition are concerned, has not been prescribed.
This, however, does not mean that a co-sharer who
is arrayed as a defendant in the suit cannot raise
the plea of adverse possession against the co-
sharer who has come before the court as a plaintiff
seeking partition of his share in the joint
property.”
21. Normally, where the property is joint, co-
sharers are the representatives of each other. The
co-sharer who might be in possession of the joint
property shall be deemed to be in possession on
behalf of all the co-sharers. As such, it would be
difficult to raise the plea of adverse possession
by one co-sharer against the other. But if the co-
sharer or the joint owner had been professing
hostile title as against other co-sharers openly
and to the knowledge of other joint owners, he can,
provided the hostile title or possession has
continued uninterruptedly for the whole period
prescribed for recovery of possession, legitimately
acquire title by adverse possession and can plead
such title in defence to the claim for partition.”
CRP 11/2024 Page 10 of 14
14. This proposition was also followed by Delhi High Court in the case of
Shri Narender Nath (supra) wherein it has been held as under:-
“The law of limitation does, per se, not prescribe
any fixed time or period for filing of suit for
partition in case of joint family property or
jointly owned properties. Joint family properties,
properties purchased in joint names or inherited
can continue till partition is sought. Law does not
prescribe any fixed time period in which a suit for
partition must be filed by one joint owner against
the other.”
15. In the case in hand, the petitioners have placed nothing on record to
show that possession of the petitioners being adverse to the respondents
herein. Even the petitioners have failed to place on record a copy of the
written statement before this Court to substantiate taking of such a plea
therein. Article 65 in the Schedule to the Limitation Act provides
limitation of 12 years, commencing from the date when the exclusion
becomes known to the plaintiff. And Explanation (b) provides that where
the suit is by a Hindu or Muslim entitled to the possession of immovable
property on the death of a Hindu or Muslim female, the possession of the
defendant shall be deemed to become adverse only when the female
dies.
16. But, in the case of Bapusaheb Chimasaheb Naik-Nimbalkar v.
Mahesh Vijaysinha Rajebhosale, reported in (2017) 7 SCC 769
Hon’ble Supreme Court has held as under:-
“13. Article 65(b) applies where the female was a
“limited owner” with regard to the disputed
property. Hence, if the sale is not for legal
purposes, it would not be binding on the estate,
CRP 11/2024 Page 11 of 14
the husband’s heirs who would be entitled to
inherit the estate after the widow’s death, would
be entitled on such death to sue for the recovery
of the property from the purchaser. As their right
would be one derived from the husband and not from
the widow, it would be independent of the widow and
they would be the persons “entitled to sue for
possession of the property on the death of the
widow” within the meaning of Explanation (b) to
Article 65. Hence, the above Explanation will apply
to their suit and they would be entitled to a
period of 12 years from the widow’s death within
which to bring the suit as held by Full Bench
verdicts in Amar Singh v. Sewa Ram [Amar
Singh v. Sewa Ram, 1960 SCC OnLine P&H, Harak
Singh v. Kailash Singh, 1958 SCC OnLine Pat 63
and Lukai v. Niranjan Dayaram 1958 SCC OnLine MP
10.
14. In the instant case, possession never became
adverse to the plaintiffs. There is concurrent
finding recorded that the plaintiffs were in joint
possession of the disputed land on the date of
filing of the suit. The defendants have taken the
plea of ouster and the suit has been filed beyond
12 years of death of Shakuntalabai but they have
not been able to prove their adverse possession. On
the contrary, the finding is that Chimasaheb
admitted the title of Anandibai. The finding is
that till 1976, Chimasaheb never denied the title
of Anandibai. Be that as it may. As adverse
possession has not been concurrently found by the
three courts and in this case the starting point of
limitation would not be the date of death of
Shakuntalabai in the year 1962 as she was fullCRP 11/2024 Page 12 of 14
owner, as such suit could not be said to be barred
by limitation.”
17. In the case in hand Balwant Kaur, who inherited 1/5th share of
property of Late Tahel Singh and Dhan Kaur, died on 07.09.1972. Her
husband Shukdev Singh died on November, 2020. Besides, she was the
full owner of the property on 07.09.1972. Article 65(b) applies where the
female was a “limited owner” with regard to the disputed property. As
such limitation would not be her date of death on 07.09.1972, as held by
Hon’ble Supreme Court in the case of Bapusaheb Chimasaheb Naik-
Nimbalkar (supra).
18. Thus, having examined the finding, so recorded by the learned
Trial Court, in the light of the aforesaid proposition of law laid in the
cases discussed herein above, as well as on the settled legal proposition
that the question of limitation is a mixed question on law and fact, this
Court is of the considered opinion that the same suffers from no infirmity
requiring any interference of this Court. Mr. Bordoloi, the learned counsel
for the respondents has rightly argued this point and I find substance in
the same.
19. Since herein this case, the suit is not only filed for decree of
confirmation of right, title and interest, but also for partition and the
period of limitation to such a suit for partition, the considered opinion of
this Court would not be applicable.
20. I have considered the submission of Mr. Saikia, the learned counsel
for the petitioners and also gone though the decisions referred by him.
There is no quarrel at the Bar, regarding the proposition of law laid down
in the cases referred by him. But, in view of the discussion and finding
CRP 11/2024 Page 13 of 14
recorded herein above, this Court is unable to record concurrence with
his submission.
21. In the result, I find this revision petition devoid of merit and
accordingly, the same stands dismissed. The parties have to bear their
own costs.
JUDGE
Comparing Assistant
CRP 11/2024 Page 14 of 14
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