JUDGMENT : ROBIN PHUKAN, J. 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 right, title and interest of the plaintiffs and proforma defendant No.9 to the extent of 1/5 th 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 1/5 th 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. 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 1/5 th 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 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. 5. Mr. Saikia, learned counsel for the petitioners further submits that the respondents/plaintiffs also claimed their share of their mother Balwant Kaur’s 1/5 th 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 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. 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 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 1/5 th 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 averment made in the plaint and one has to treat every averment in the plaint as factually true. As far as the rejection of plaint is concerned, the sustainability, as such, has to be decided on the averment 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; (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 it 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. 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:- “ 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. 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. 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, 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 su e 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. 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 full owner, as such suit could not be said to be barred by limitation. 17. In the case in hand Balwant Kaur, who inherited 1/5 th 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 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.