Bhardwaj Harshad Maniar vs Lila Harshad Maniar And Anr

2024:BHC-OS:10613 906-IA16701-2024INS102-2024.DOC

Santosh

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

SANTOSH SUBHASH INTERIM APPLICATION (L) NO. 16701 OF 2024 KULKARNI Digitally signed by SANTOSH SUBHASH IN KULKARNI Date: 2024.07.19 17:10:54 +0530 SUIT NO. 102 OF 2024

Bhardwaj Harshad Maniar ...Applicant In the matter between Lila Harshad Maniar and anr. ...Plaintiffs Versus Bhardwaj Harshad Maniar ...Defendant

Mr. Rajiv Narula, a/w Mr. Tarang Jagtiani, i/b Jhangiani, Narula & Associates, for the Applicant in IA/16701/ 2024/for the Defendant in S/102/2014. Mr. Amod Eklaspur, a/w Ayaz Bilawala & Disha Mehta, i/b Bilawala & Co., for the Plaintiffs in S/102/2024.

CORAM: N. J. JAMADAR, J. DATED: 18th JULY, 2024

ORDER:

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1. The defendant has preferred this application for rejection

of plaint under Order VII Rule 11(d) of the Code of Civil

Procedure Code, 1908 on the ground that the suit is ex facie

barred by law of limitation.

2. The background facts necessary for the determination of

this application are as under:

(a) Harshad Maniar (the deceased) was the husband of

plaintiff No.1. Plaintiff No.2 and the defendant are the children

of plaintiff No.1 and deceased. During the lifetime of the

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deceased, all the parties were residing in Flat No.31, 6 th Floor,

Aryan Mahal, C-Road, Marine Drive, Mumbai - 400 020, ("the

suit flat"), which was originally owned by Rukshamaniben, the

mother of the deceased. Rukshamaniben passed away on 28 th

January, 2009. The suit flat devolved on the deceased.

(b) M/s. Maniar Plastic Industries was a family run

partnership firm. The deceased had 50% share in the profits of

the said firm. Two premises i.e. (i) an office at 63, 3 rd Bhoiwada,

Bhuleshwar, Mumbai and (ii) a factory at Amar Estate, Sion-

Trombay Road, Chembur, Mumbai, were in possession of the

said firm as tenant thereof.

(c) The plaintiffs assert, during the lifetime of

Rukshamaniben and the deceased, disputes arose between the

defendant, on the one part, and the rest of the family members,

on the other part, as the defendant allegedly developed an illicit

relationship with a married woman. The defendant allegedly

brought the said lady into the suit flat. Eventually, as the

relationship further deteriorated, the deceased instituted L.E.

Suit No.196 of 2009 in the Court of Small Causes at Mumbai

seeking eviction of defendant alongwith his partner from the

suit flat.

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(d) The plaintiffs assert, after Harshad passed away in

the year 2010, the defendant drove out the plaintiff No.1 from

the suit flat and usurped the suit flat. The defendant took

control of the family business of M/s. Maniar Plastic Industries.

Plaintiff No.1 was constrained to take shelter in the house of

plaintiff No.2, who was then residing in Nigeria. The defendant

did not make any provision for plaintiff No.1. When the plaintiffs

asserted their rights in the suit property, the defendant gave

empty assurances. Ultimately vide notice dated 5 th May, 2023

the defendant claimed exclusive ownership over the suit

property to the exclusion of the plaintiffs.

(e) As attempts to arrive at an amicable settlement of

the dispute did not fructify, the plaintiffs were constrained to

institute this suit for the reliefs, inter alia, of declaration that

the plaintiffs and defendant, are entitled to 1/3 undivided

share, right, title and interest in the estate of the deceased, and

for the sale of the suit flat by invoking the power under Section

2 of the Partition Act, 1893 and the distribution of the sale

proceeds thereof in accordance with the respective shares of the

parties.

(f) In response to the suit summons, the defendant has

appeared and filed the instant application for rejection of the

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plaint. The substance of the application is that from the

averments in the plaint, especially in paragraphs 6, 22 and 23,

it becomes clear that the plaintiffs, on their own showing, have

claimed that plaintiff No.1 was ousted from the suit flat in or

about September, 2010. Thus, cause of action to institute the

suit arose in the year 2010 itself. However, the suit came to be

instituted on 5th February, 2024 after a lapse of 13 and half

years; clearly beyond the statutory period of limitation

prescribed under Article 65 of the Limitation Act, 1963.

(g) The defendant asserted the cause of action premised

on the notice dated 5th May, 2023 is misconceived. As there was

ouster of plaintiff No.1 from the joint family properties in the

year 2010 itself, the reliefs claimed by the plaintiffs are grossly

barred by law of limitation. Therefore, the plaint deserves to be

rejected as from the statement in the plaint itself, it becomes

explicitly clear that the relief claimed is barred by law of

limitation.

(h) The plaintiffs have resisted the application by filing

an affidavit-in-reply. The plaintiffs assert the application for

rejection of plaint is wholly misconceived. The defendant has

resorted to selective reading of the averments in the plaint to

defeat a legitimate right of the plaintiffs in the estate left behind

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by the deceased. The fact that plaintiff No.1 was compelled to

move out of the suit flat does not imply that either there was

relinquishment of the claim over the estate of the deceased by

the plaintiff No.1 or there was ouster of plaintiff No.1. Being the

co-owners of the estate of the deceased alongwith the defendant,

the plaintiffs have right to every infinitesimal portion of the

estate of the deceased. Thus, the provisions contained in Article

65 of the Limitation Act have no application at all to the instant

suit as under no circumstances can it be said that the

possession of the defendant, a co-owner, became adverse qua

the plaintiffs.

(i) In the alternative, the plaintiffs contend that in view

of the order passed by the supreme Court dated 10 th January,

2022 in Suo Motu Writ Petition (C) No.3 of 2020 on account of

the exigency of the situation which arose due to Covid-19

Pandemic, the period of limitation stood suspended during the

period 15th March, 2020 to 20th February, 2022. Resultantly, the

suit instituted on 5th February, 2024 would be within the

stipulated period of limitation.

3. In the backdrop of the aforesaid facts and pleadings, I

have heard Mr. Rajiv Narula, the learned Counsel for the

applicant - defendant and Mr. Eklaspur, the learned Counsel for

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the plaintiffs - respondents, at some length. With the assistance

of the learned Counsel for the parties, I have perused averments

in the plaint and the material on record.

4. Mr. Narula, the learned Counsel for the defendant,

submitted that it is well recognized that the provision contained

in Order VII Rule 11(d), empowering the Court to reject the

plaint if it appears to be barred by any law, subsumes in its fold

the law of limitation. If from the bare perusal of the averments

in the plaint, the Court can record a finding that the suit has

been instituted beyond the stipulated period of limitation, there

is no impediment in rejecting the plaint. Mr. Narula further

submitted that, in the case at hand, the fact that the plaintiff

No.1 was ousted of the suit property in the year 2010 is borne

out by the averments in the plaint in no uncertain terms. Thus,

no trial is warranted and the proceedings can be nipped in the

bud on the basis of the averments in the plaint itself, which is

the true object of the provisions contained in Order VII Rule

11(d) of the Code.

5. To bolster up this submission Mr. Narula placed a strong

reliance on the decision of the Supreme Court in the case of

Hardesh Ores (P) Ltd. vs. Hede and Company 1, wherein it was

1 (2007) 5 Supreme Court Cased 614.

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enunciated that the term, "law" within the meaning of clause (d)

of Order VII Rule 11 includes the law of limitation as well. To

draw home the point that an inference of ouster can be drawn

on the basis of averments in the plaint, especially paragraphs 6,

22 and 23, and that furnishes a justifiable foundation for

rejection of the plaint as being barred by law of limitation, Mr.

Narula placed reliance on the decisions of the Supreme Court in

the cases of Vidya Devi alias Vidya Vati (dead) by LRs. vs. Prem

Prakash and ors.2 and Mohammadbhai Kasambhai Shiekh and

ors. vs. Abdulla Kasambhai Sheikh3.

6. Per contra, Mr. Eklaspur, the learned Counsel for the

plaintiffs, stoutly submitted that the application for rejection of

plaint proceeds on an incorrect impression of law governing the

rights of the co-owner. It was submitted that possession of one

co-owner is for and on behalf of the co-owners. To defeat the

rights of a co-owner, another co-owner has to prove a clear case

of ouster with all the essential ingredients that are required to

be established to sustain a claim of acquisition of ownership by

adverse possession.

7. Mr. Eklaspur further submitted that the entire exercise

of the defendant is driven by an oblique motive to deprive

2 (1995) 4 Supreme Court Cases 496.

3 (2004) 13 Supreme Court Cases 385.

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the rights of his mother and sister. The basis of the claim of

ouster is premised on a selective reading of the averments in

paragraphs 6, 22 and 23 of the plaint. It was urged that for

ascertaining whether a plaint discloses a cause of action or is

barred by any law, the plaint is required to be read as a whole

and not a sentence or paragraph here or there.

8. Mr. Eklaspur further urged that the Court cannot lose

sight of the circumstances in which the plaintiff No.1, the widow

of the deceased, was forced to take refuge in the house of

plaintiff No.2. The fact that the deceased during his lifetime had

instituted a suit against the defendant and his partner also has

a significant bearing on the claim of adverse possession. In this

backdrop, by no stretch of imagination, the defendant can be

said to have perfected his title by prescription or ouster, as

alleged. A strong reliance was placed on the decision of the

Supreme Court in the case of Govindammal vs. R. Perumal

Chettiar and others4.

9. Lastly, Mr. Eklaspur submitted that the suit being

essentially one for the administration of the estate of the

deceased, there is no specific period of limitation prescribed

under the Limitation Act, 1963. It was the wholly unjustified

4 (2006) 11 Supreme Court Cases 600.

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claim of exclusive ownership, vide notice dated 5 th May, 2023,

that furnished the cause of action for the suit. To buttress the

submission that no specific period of limitation has been

prescribed for an administration suit, Mr. Eklaspur placed

reliance on the Full Bench decision in the case of Sajanbir

Singh Anand and others vs. Raminder Kaur Anand and others 5.

10. The relevant part of order VII Rule 11(d) reads as under:

"11. Rejection of Plaint - The plaint shall be rejected in the following cases:-

(a) ... (b) ... (c) ... (d) Where the suit appears from the statement in the plaint to be barred by any law, .......".

11. A plain reading of the aforesaid provision would indicate

that the bar to the institution and/or continuation of the suit

under any law must manifest from the statement in the plaint.

Thus, while considering a prayer for rejection of the plaint, the

Court has to consider the averments in the plaint and the

documents annexed with it. At this stage, the nature of the

defence put-forth by the defendant is of no relevance. In fact,

the Court cannot look into the defence set up by the defendant.

It is equally well settled that to determine whether the suit is

5 2018(3) Mh.L.J. 892.

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barred by any law, the plaint is required to be read as a whole.

It is impermissible to pick and choose one sentence or

paragraph from the plaint to adjudge whether the plaint is

barred by any law.

12. The legal position is crystallized. A useful reference can be

made to the decision of the Supreme Court in the case of The

Church of Christ Charitable Trust & Educational Charitable

Society vs. M/s Ponniamman Educational Trust represented by

its Chairperson/Managing Trustee6, wherein after analysing

provisions of Order VII Rule 11 and in the context of the

previous pronouncements, it was enunciated as under:

"11. This position was explained by this Court in Saleem Bhai & Ors. vs. State of Maharashtra and Others, (2003) 1 SCC 557, in which, while considering Order VII Rule 11 of the Code, it was held as under:

"9. A perusal of Order VII Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order VII Rule 11 CPC at any stage of the suit -- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order VII CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order VII Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court......."

It is clear that in order to consider Order VII Rule 11, the Court has to look into the averments in the plaint and the same can be exercised by the trial Court at any stage of the suit. It is

6 (2012) 8 SCC 706.

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also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. vs. Ganesh Property (1998) 7 SCC 184 and Mayar (H.K.) Ltd. and Others vs. Owners & Parties, Vessel M.V. Fortune Express and Others (2006) 3 SCC 100.

13. While considering the question of rejection of plaint, the

Court is also enjoined to read the plaint in a meaningful and not

formalistic manner. If an illusion of a cause of action for the

suit is created by resorting to cleaver drafting, the Court has to

carefully examine the plaint to unearth the true import of the

plaint and if the court finds that it is a vexatious and trumped

up case, it should not hesitate in nipping such case in the bud.

14. A reference is often made to the decision of the Supreme

Court in the case of T. Arivandandam vs T. T. Satyapal and

another7, wherein the necessity of a meaningful reading of the

plaint was tersely emphasised. The observations of the

Supreme Court in the case of T. Arivandandam (supra) read as

under:

"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif's Court, Bangalore, is a flagrant misuse of

7 1977(4) SCC 467.

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the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII R 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits."

15. In the light of the aforesaid principles which govern the

exercise of jurisdiction under Order VII Rule 11, the claim for

rejection of the plaint in the instant suit is required to be

adjudicated. It is true in paragraph 6 of the plaint, the plaintiffs

aver that after the demise of the husband of plaintiff No.1 and

father of plaintiff No.2 and the defendant, the plaintiff No.1 was

driven out of the suit flat, in September, 2010, and possession

thereof was entirely usurped by the defendant to the absolute

exclusion of the plaintiffs. The defendant also took control

of the family business M/s. Maniar Plastic Industries. To the

similar effect are the averments in paragraphs 22 and 23 of the

plaint.

16. However, the aforesaid assertions cannot be read in

isolation and torn out of context. The plaintiffs have averred

with sufficient clarity the genesis of the dispute between the

family members, on the one part, and the defendant, on the

other, being the induction of his partner by the defendant in the

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suit flat, leading to institution of L.E. Suit No.196 of 2009 by the

deceased against the defendant and his partner. It would be

contextually relevant to note that in the notice dated 5 th May,

2023, which according to the plaintiffs furnishes the cause of

action, the defendant contended that since the abatement of the

said suit in the year 2010, the defendant and his wife have been

in exclusive, uninterrupted, open, hostile and settled possession

of the said flat for the period of more than 12 years and thus

they have perfected their title by prescription and have,

therefore, become owners of the suit flat by adverse possession.

17. At this stage, the nature of interest of the co-owners in the

joint family property deserves to be noted. In this branch of law,

certain principles are well recognized. First and foremost, the

possession of a property belonging to several co-sharers by one

co-sharer shall be deemed to be a possession on behalf of the

other co-sharers as well. A co-sharer, in a sense, becomes a

constructive trustee of other co-sharers, right and interest in

the property. Possession of one co-owner is, in law, the

possession of his co-owners. Secondly, possession of one co-

owner is, normally, not considered adverse to other co-owners.

For the possession of a co-owner to become adverse to the other

co-owners, it is necessary that there should be ouster or

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something equivalent to it. At the same time, mere non-

participation in the rights and profits of the land by a co-sharer

does not amount to ouster so as to give title by adverse

possession to the other co-sharer in possession. All the

classical requirements of the adverse possession need to be

established, with a higher degree of precision and proof, where

the right of a co-owner is sought to be defeated on the principle

of ouster.

18. A Three-Judge Bench of the Supreme Court in the case of

P. Lakshmi Reddy vs. L. Lakshmi Reddy 8 expounded the law in

the following words:

"4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan [61 Ind App 78 at p 82). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See, Radhamoni Debi v. Collector of Khulna [27 Ind App 136 at p 140 (PC)]. But it is well-settled that in order. to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession, who claims his possession to be. adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The coheir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Corea v. Appuhamy [1912] A.C. 230(C)]. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other

8 AIR 1957 SC 314.

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so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other. There are cases which have held that adverse possession and ouster can be inferred when one co-heir takes and maintains notorious exclusive possession in assertion of hostile title and continues in such possession for a very considerable time and the excluded heir' takes no steps to vindicate his title. Whether that line of cases is right or wrong we need not pause to consider. It is sufficient to notice that the Privy Council in N. Varada Pillai v. Jeevarathnammal A.I.R. 1919 P.C. 44 (D) quotes, apparently with approval, a passage from Culley v. Deod Taylerson [(1840) 3 P & D 539: 52 RR 566 (E)] which indicates that such a situation may Tell lead to an inference of ouster "if other circumstances concur". (See also Govindrao v. Rajabai [AIR 1931 PC 48 (F)]. It may be further mentioned that it is well-settled that the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession."

(emphasis supplied)

19. Following the aforesaid pronouncement in the case of Md.

Zainulabudden vs. Sayed Ahmed Mohideen9, the Supreme Court

enunciated that it is well settled that where one co-heir pleads

adverse possession against another co-heir it is not enough to

show that one out of them was in sole possession and

enjoyment of the profits of the properties. The possession of

one co-heir is considered in law as possession of all the co-

heirs. The co-heir in possession cannot render his possession

adverse to the other co-heirs not in possession merely by

any secret hostile animus on his own part in derogation of the

other co-heirs title. It is a settled rule of law as between co-

heirs that there must be evidence of open assertion of hostile

9 (1990) 1 SCC 345.

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title coupled with exclusive possession and enjoyment by one

of them to the knowledge of the other so as to construe ouster.

20. In the case of Vidya Devi (supra), on which reliance was

placed by Mr. Narula, the requirements of "ouster" were

postulated as under:

"28. "Ouster" does not mean actual driving out of the co- sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus (ii) long and uninterrupted possession of the person pleading ouster and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law."

(emphasis supplied)

21. In the case of Md. Mohammad Ali (dead) by LRs vs.

Jagadish Kalita and others10, after a survey of the precedents,

the Supreme Court enunciated the law as under:

"19. Long and continuous possession by itself, it is trite, would not constitute adverse possession. Even non- participation in the rent and profits of the land to a co- sharer does not amount to ouster so as to give title by prescription. A co-sharer, as is well settled, becomes a constructive trustee of other co-sharer and the right of the appellant and/or his predecessors in interest would, thus, be deemed to be protected by the trustee. As noticed hereinbefore, the respondents in their written statement raised a plea of adverse possession only against the third set of the defendants. A plea of adverse possession set up by the respondents, as reproduced hereinbefore, do not meet the requirements of law also in proving ouster of a co- sharer. But in the event, the heirs and legal representatives

10 (2004) 1 SCC 271.

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of Gayaram Kalita and Kashiram Kalita partitioned their properties by meets and bounds, they would cease to be co- sharers in which event a plea of adverse possession as contra distinguished from the plea of ouster could be raised. The courts in a given situation may on reading of the written statement in its entirety come to the conclusion that a proper plea of adverse possession has been raised if requisite allegations therefor exist. In the event the plaintiff proves his title, he need not prove that he was in possession within 12 years from the date of filing of suit. If he fails to prove his title, the suit fails.

20. By reason of Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Art. 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years preceding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiff's claim to establish his title by adverse possession. ............

25. Possession of a property belonging to several co- sharers by one co-sharer, it is trite, shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharers would not amount to ouster unless there is a clear declaration that the title of the other co- sharers was denied and disputed. No such finding has been arrived at by the High Court."

(emphasis supplied)

22. In the light of the aforesaid enunciation of law, reverting to

the facts of the case, it is imperative to note that the

relationship between the parties was fractious, even during the

lifetime of the deceased. As is evident from the material on

record, the deceased father of the defendant was constrained to

institute a suit to evict the defendant and his partner from the

suit flat. The extent to which the relations between the

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defendant, on the one part, and the other family members, on

the other part, were strained can be gauged from the said

factum of institution of a suit for eviction. It is in this backdrop,

the allegations of the plaintiffs, that plaintiff No.1 was compelled

to leave the suit flat after the demise of her husband, are

required to be appreciated. A mere assertion that the defendant

by his acts and conduct made the stay of plaintiff No.1 in the

suit flat unbearable, need not necessarily justify an inference of

either relinquishment of interest on the part of plaintiff No.1 or

declaration of a hostile animus on the part of the defendant.

Whether the said fact constituted ouster would be a matter for

adjudication at the trial.

23. A heavy onus rests on the defendant to establish the

classical requirement of adverse possession by cogent evidence.

The fact that the initial possession of the defendant was either

permissive or referable to a lawful title cannot be lost sight of. It

would be impermissible for the defendant to put an end to such

possession by a secret desire. Nothing short of ouster or

something equivalent to ouster can only bring about that result.

24. It would be contextually relevant to note that the stated

case of the defendant in the notice dated 5th May, 2023 was

perfection of title by prescription on the basis of hostile

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possession for 12 years from the abatement of the suit instituted

by the deceased, in the year 2010. Evidently, the said suit was

on the premise that the defendant was a gratuitous licensee.

Suffice to note a claim for adverse possession by a person, who

is stated to be a licensee is tenuous. Therefore, the question as

to whether the suit is barred by law of limitation, being

essentially a mixed question of fact and law, it would be rather

hazardous, at this stage, to accede to the submission on behalf

of the defendant that the instant suit is barred by law of

limitation.

25. The reliance placed by Mr. Eklaspur on the decision of the

Supreme Court in the case of Govindammal (supra) appears to

be well founded. In the said case, it was enunciated that in

order to oust by way of adverse possession, one has to lead

definite evidence to show that to the hostile interest of the party

that a person is holding possession and how that can be proved

will depend on facts of each case. In the facts of the said case, it

was further observed that, it was the widow, who has been

thrown out and she has been moving from pillar to post. The

relief cannot be denied to her just because she sent notice

claiming partition of the properties and she did not file any suit

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thereafter and the stepsons were holding the properties

adversely and hostile to her knowledge.

26. There is another significant factor, which renders the

claim for rejection of the plaint untenable. Plaintiff No.2, being a

Class-I heir of the deceased, is entitled to claim a share in the

properties left behind by the deceased in her own right. Even if

the averments in the plaint are read in the manner desired by

the defendant, the claim of plaintiff No.2 cannot be said to be

barred by law of limitation, by any stretch of imagination.

27. Resultantly, the application for rejection of plaint, being

devoid of substance, deserves to be rejected.

28. Hence, the following order:

:ORDER:

(i) Application stands rejected.

(ii) Costs in cause.

[N. J. JAMADAR, J.]

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