Judgment :- Seeking rejection of the plaint filed by the first respondent/plaintiff in C.S.No.144 of 2002, the instant applications have been brought forth by the defendants 1 and 2 respectively. 2. Affidavits in support of the applications and counter affidavits are perused. The learned senior, counsel on either side are also heard. 3. It is a suit originally filed for partition claim­ing 1/3rd share in the schedule mentioned properties Annexed to the plaint. The suit was filed on 4.9.2000, wherein certain averments were made speaking about the partition deed entered into on 15.9.1997; but, no relief seeking to set aside that partition deed was asked for. On that ground, the plaint was returned by the office on 7.9.2000 and re-presented on 8.9.2000. Again, it was returned on 16.9.2000, and the matter was placed before His Lordship Jus­tice Padmanabhan of this Court, wherein the objections raised by the office were considered by the Court, and an order was passed on 29.1.2002, which reads as follows: "The Registry had raised objections with respect to the relief sought for as well as the valuation of the suit claim. Heard the learned counsel for the plaintiff. 2. Even according to the plaint averments, there has been an earlier division by way of a registered partition deed between the plaintiff and the defendants 1 and 2. Cer­tain averments have been set out with re­spect to the said partition as not binding or invalid. Yet, unless the said partition deed or division is set-aside on one or more other grounds as invalid, the plea of partition can­ not be accepted. Already division has been effected between the three sharers who are in exclusive possession of their respective shares as per the instrument of the parti­tion entered into between the parties. Therefore, the plaintiff cannot even state that he is in joint possession, as there has been a severance of jointness. Therefore, Court fee has to be paid on the basis of market value, as admittedly the plaintiff is not in possession and the plea of joint pos­ session is unsustainable as there has al­ready been a division by metes and bounds. Hence, the plea, to pay fixed Court fee cannot be sustained. The objections raised by the Registry are sustained. 3. Hence, the plea, to pay fixed Court fee cannot be sustained. The objections raised by the Registry are sustained. 3. Learned counsel for the plaintiff represents that the plaint be returned so that the plaintiff could seek for proper relief and pay appropriate Court fee payable thereon.” 4. Thereafter, the prayer to set aside the partition deed dated 15.9.1997 was included and the matter was actually numbered and now it is pending. On service of summons, both the defendants have appeared before the Court. Now, they have taken out the instant applications for rejection of the plaint. 5. The plaint is sought to be rejected on two grounds. The suit was filed on 4.9.2000 wherein the partition deed dated 15.9.1997 has been clearly referred to but, no relief seeking to set it aside was sought for, and under the circumstances, it was returned. On that ground, it is a fit case where the plaint has got to the rejected. The learned senior counsel for the applicants placed reliance on the provisions, of O.VII, Rule 11 of C.P.C., wherein the reasons and the conditions under which the plaint could be rejected, are stipulated. They would further add that in the instant case, the case of the plaintiff was hopelessly hit by limitation for the simple reason that originally there was a partition on 15.9.1997; that the suit itself was filed on 4.9.2000; that an order came to be passed by His Lordship Justice Padmanabhan on 29.1.2002; but, subsequent thereto an introduction of the prayer has arisen seeking to declare the instrument as void, and thus, under Art.59 of the Limitation Act, it should have been brought within the period of three years, but not done so. The learned Senior counsel for the applicant; relied on a decision of this Court made in Application No.4712 of 2003 in C.S.No.517 of 2003 and also a decision reported in 2003 L.W.809. Pointing to these decisions, the learned senior counsel would submit that in the instant case, Originally there was availability of the prayer seeking to set it aside, but not even done; that the plaintiff has filed the suit seeking for partition and also not done within the time, and thus, it is barred by law of limitation, and under the circumstances, it is a fit case where O.7, Rule 11(d) has got to be applied, and the plaint has got to be rejected. 6. Countering the above contentions, the learned senior counsel for the first respondent/plaintiff would submit that third plaintiff before the Court is the only daughter through the first wife of the owner of the properties, while the defendants are the son and daughter through the second wife respectively; that it is true that a partition was entered into on 15.9.1997, wherein the value of the property is shown as more than a crore; but, it is a matter of surprise to note that what was allotted to the plain­tiff was the property worth Rs.7,000; that it was a fraudulent one; that specific averments are made in the plaint; that it is true that the suit was originally filed seeking for partition of 1/3rd share of the plaintiff, since according to the plaintiff, it was non-est; that subsequently, it was also rectified when a query was raised by the office to include the prayer of declara­tion that the document is void; that subse­quently, it was placed before His Lordship Justice Padmanabhan; that the Court heard the parties and passed an order returning the plaint; that while ordering so, the Court has not pointed out that the prayer for inclusion as to the set­ting aside of the partition deed was not asked for but, what was all before the Court was office query; that the Court hag also pointed out that the plaintiff, even as per the averments, is out of possession, and it is not a fit case where the Court fee could be paid under Sec.37(2) of the Court Fees Act; but, the market value has got to be looked into; that now, the Court fee has been paid under Sec.37(1) of the Act, and under the circumstances, it was only a direction for payment of Court fee; that even after that, the Court fee has been paid taking into consideration the value of the property as found in the partition deed which according to the partition deed is the market value; that the contention that the suit is barred by limitation and hence, it has to be rejected under O.7, Rule.11(d), and apart from that, there was deficit of Court fee has got to be discountenanced by the Court, and hence, both the applications have got to be rejected. 7. 7. The Court paid its full attention on the sub­missions made and is of the considered opin­ion that the applications require an order of dismissal by the Court. In the instant case, it is true that originally, a suit for partition was filed on 4.9.2000. Admittedly, there was a partition deed on 15.9.1997. When the plaint was filed for the purpose of 1/3rd share which the plain­ tiff would claim, it was returned by the office stating that originally there was a partition deed, and without setting aside the same, how such a relief could be granted. After so many re­turns and representations, it could be seen that the relief of declaration that it is void was in­cluded on 8.9.2000. Thus, this would fall within three years from the date of the partition deed. That apart, it is pertinent to point out that the provisions under O.7, Rule 11(d) cannot be applied to the present facts of the case. The sum and substance of the argument advanced by the learned senior counsel for the applicants, is that it is barred by limitation. Needless to say that the question of limitation is a mixed question of fact in law. At this juncture, the Court on that ground pointing to the Limitation Act, cannot and should not reject the plaint. 8. The learned senior counsel for the applicants would further submit that It is true that the partition was entered into on 15.9.1997; that the prayer to declare the partition deed as invalid was also included on 8.9.2000, which is within the period of three years as contemplated under Art.59 of the Court Fees Act. Further, the parties are in controversy, and this question can be left open to be decided at the time of trial on evidence adduced by both sides. 9. So far as the second question as to the pay­ment of Court fee is concerned, originally, there was a direction by this Court. Needless to say that this Court has pointed out in the earlier order that at no stretch of imagination Sec.37(2) of the Act for payment of Court fee in respect of joint possession can be applied, and what is available is Sec.37(1). Needless to say that this Court has pointed out in the earlier order that at no stretch of imagination Sec.37(2) of the Act for payment of Court fee in respect of joint possession can be applied, and what is available is Sec.37(1). The learned senior counsel for the plaintiff would submit that even after the order of His Lordship Justice Padmanabhan, the Court fee has been paid taking into consideration the market value of the property as found in the partition deed. Now, the learned senior counsel for the defendants would submit that it is a case where Sec.40 has got to be applied. Now, it is stated that Court fee of Rs.59,000 and odd has been paid on the value bf the property as found in the partition deed. Whether proper Court fee is paid or not and whether the prayer seeking to set aside the partition deed dated 15.9.1997 has been properly done or not can also be kept open to be decided. Now, at this juncture, this Court is of the considered opinion that this can­not also be a reason to reject the plaint since the Court fee according to the plaintiffs counsel has been paid. However, the defendants are at liberty to raise the contention at the time of the final disposal of the suit; but, this cannot be a ground, in the opinion of this Court, to reject the plaint it this stage. 10. For the reasons stated above, both the applications deserve to be dismissed. Accordingly, they are dismissed. Applications dismissed.