ORDER : B. Veerappa, J. The 7th defendant filed the present civil revision petition against the order dated 28-6-2016 on I. A. No. 5 in O.S. No. 267 of 2010 on the file of the Senior Civil Judge, Nelamangala rejecting her application under Order 7, Rule 11 of Code of Civil Procedure, 1908 to reject the plaint. 2. The respondents Nos. 1 and 2/plaintiffs filed suit in O.S. No. 267 of 2010 for partition and separate possession of their ½ share in the suit schedule property and also for declaration that the registered sale deed dated 8-6-2007 is not binding on the plaintiffs to the extent of their half share and that the sale deed is a sham and nominal document, contending that the suit schedule property was Talari Service Inam land which was regranted as per the order of the Tahsildar, Nelamangala Taluk in Case No. H.O.A CR 26/69-70, 260/80-81 and as per the said order each persons are entitled for ? equal share out of 38 guntas in Sy. No. 9 of Bailukonenahalli Village, Dasanapura Hobli, Bangalore North Taluk. As per the said order, 38 guntas were granted in the names of three persons i.e., in favour of the Munivenkatappa, S/o. Pujari Thimmappa, i.e., the father of the plaintiff; Kempaiah, S/o. Pujari Thimmappa i.e. the father of the defendants Nos.1, 2 and 6; and Munikempaiah, S/o. Pujari Thimmappa were the absolute joint owners in possession and enjoyment of the agricultural lands. 3. The Genealogical tree of the plaintiff's family and the defendant's family are produced at Annexures-C and D. Munivenkatappa i.e., the father of plaintiff died intestate leaving behind his only legal representative i.e. the plaintiff as his legal representative and by virtue of intestate succession, ?rd portion of agricultural property bearing Sy. No. 9 devolved upon to the plaintiff and she has succeeded over the same by way of inheritance and has become the absolute owner and is in peaceful possession and enjoyment of the ?rd portion of suit schedule property. The plaintiff approached defendants Nos.1, 2 and 6 to effect partition and bifurcate the property into equal 3 portions as per the order of Tahsildar and to get transfer the katha into the individual names with respect to the respective share. The defendants though assured to effect partition, but started postponing the same on one pretext or the other. The 3rd son of Poojari Thimmappa viz. The defendants though assured to effect partition, but started postponing the same on one pretext or the other. The 3rd son of Poojari Thimmappa viz. Munikempaiah has got transferred the katha to an extent of ?rd portion of the total extent of 38 guntas granted and presently the katha in respect of 0.12.12.00 guntas of land is maintained in the name of Munikempaiah, S/o. Poojari Thimmappa which is not in dispute. However, to the shock and surprise of the plaintiff, the 2nd defendant has managed to change/transfer the katha in respect of remaining ?rd share in 38 guntas of land i.e. 0.25.04.00 guntas of land in his name without the knowledge and consent of the plaintiff. The said property to an extent of 0.25.04.00 guntas of land is represented as the suit schedule property. Further the defendant No.2 along with the defendants Nos. 3 to 5 have created a document in the name and style of sale deed dated 8-6-2007 in favour of the 7th defendant with respect to suit schedule property depriving legitimate right, title and interest of the plaintiff in the suit property. Therefore, sought for partition as prayed for. 4. The 7th defendant filed written statement denying the entire plaint averments and contended that plaintiff is not entitled for any share in the entire suit schedule property. The plaintiff claims the share on the strength of Section 6 of the Hindu Succession (Amendment) Act, 2005. When the matter was posted for evidence at that stage, the 7th defendant filed an application under Order 7, Rule 11 (d) of Code of Civil Procedure, 1908 to reject the plaint as it is barred under the Hindu Succession Act and further contended that the plaintiff filed the suit claiming that she is the daughter of Late Munivenkatappa and as such she is a coparcener along with the defendants Nos.1 to 9. The said claim is made only on the strength of Section 6 of the Hindu Succession Act, 2005 and as per the provisions of Section 6 of Hindu Succession Act, any alienation or partition made prior to 20th December, 2004 shall not be effected or invalidated and as such the plaintiff has to prove that there was no alienation or partition prior to 20th December, 2004 and there was already partition amongst the brothers of her father and therefore the very suit is not maintainable; and further contended that as per Section 6 of Hindu Succession Act, the daughter as a coparcener shall get right by birth subject to condition that any disposition or alienation including any partition or testamentary disposition of property which had not taken place before 20th December, 2004 and sought for rejection of the plaint. 5. The plaintiff filed objections to the said application and contended that provision of Order 7, Rule 11 (d) is not applicable to the suit. The allegation made by the defendant No.7 in the supporting application that the plaintiff has claimed the share on the strength of Section 6 of Hindu Succession Act is not correct as the plaintiff's case is not that the entire property was ancestral property but it is the case of the plaintiff that her father was granted ?rd share of land out of 38 guntas which was jointly granted to the father of the plaintiff, father of defendants Nos. 1, 2 and 6 and Munikempaiah. The suit filed by her does not come under the provisions of Section 6 of Hindu Succession Act. It is further contented that nowhere in the plaint averments the plaintiff has claimed the partition as a coparcener and nowhere pleaded that there is already a partition. The father of the plaintiff, one of the joint grantee has got transferred the katha to an extent of ?rd share in the total extent of 0.38 guntas granted jointly in the names of three persons including the father of the plaintiff and the plaintiff being the only daughter and legal heir she is entitled to succeed to the said property, since the plaintiff died, the legal representatives of the plaintiff are entitled for the said property. Hence, they have rightly claimed partition in respect of the suit schedule property. Hence sought for dismissal of the application. 6. Hence, they have rightly claimed partition in respect of the suit schedule property. Hence sought for dismissal of the application. 6. Sri H. Mujtaba, learned Counsel for the petitioner-7th defendant contended that the impugned order passed by the Trial Court is erroneous, contrary to law. He further contended that a meaningful reading of the plaint coupled with the documents produced by the plaintiff, the suit of the plaintiff is hit by the provisions of Section 6 of the Hindu Succession Act and therefore, the plaint is liable to be rejected. It is further contended that the plaintiff who is daughter of Munivenkatappa cannot seek partition and therefore the suit is barred by Section 6 of the Hindu Succession Act and the claim of the plaintiff is on the strength of section of the Hindu Succession Act and any alienation made prior to 20-12-2004 shall not be affected or invalidated and since partition has already been taken place amongst the brothers of the father of the plaintiff, the suit is hit by Section 6 of the Hindu Succession Act, and therefore, sought to allow the writ petition. 7. In view of the aforesaid legal contentions urged by the learned Counsel for the petitioner, the only point that arises for consideration is: "Whether the impugned order passed by the Trial Court rejecting the application filed under Order 7, Rule 11 of the Code of Civil Procedure calls for interference, in the facts and circumstances of the case?" 8. I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the petitioner and perused the materials on record. 9. Respondents Nos. 1 and 2 who are the plaintiffs before the Trial Court in O.S. No. 267 of 2010 filed suit for partition and separate possession of her half share in the suit schedule property more fully described in the schedule contending that the said property was granted in the name of Munivenkatappa, S/o. Pujari Thimmappa, i.e., father of the plaintiff; Kempaiah, S/o. Pujari Thimmappa, i.e., father of defendants Nos. 1, 2 and 6; and Munikempaiah, S/o. Pujari Thimmappa, who are the absolute owners in possession and enjoyment of the agricultural property morefully described in the schedule to the plaint and was granted jointly in the names of all the brothers. 1, 2 and 6; and Munikempaiah, S/o. Pujari Thimmappa, who are the absolute owners in possession and enjoyment of the agricultural property morefully described in the schedule to the plaint and was granted jointly in the names of all the brothers. Munivenkatappa died leave behind the plaintiff, his only legal representative and by virtue of intestate succession, ?rd portion of the agricultural property and specifically contended that there was no partition in the joint family. 10. The present petitioner-7th defendant has not produced any written statement filed by any of the defendants. 11. When the matter was posted for evidence of 7th defendant who is the subsequent purchaser from defendants Nos.2 to 5 under registered sale deed dated 8-6-2007, filed the present application under Order 7, Rule 11 of the Code of Civil Procedure contending that the suit filed by the plaintiff only on the strength of the Section 6 of the Hindu Succession Act and there was partition between the members of the joint family prior to 20th December, 2004, therefore, the very suit filed by the plaintiff is not maintainable. Therefore, she filed the present application to reject the plaint. It was a specific contention of the plaintiff by filing objection that the suit filed by her is only on the basis of Section 8 of the Hindu Succession Act, 1956 and not on the basis of Section 6 of the Hindu Succession Act as a coparcener. 12. In paragraphs 5 and 6 of the objection to the application, it is specifically stated by the plaintiff that suit does not come under Section 6 of the Hindu Succession Act and also not come under the exception and bar provided under the said section and nowhere in the pleading and averments made in the plaint, the plaintiff has claimed the partition as a coparcener and nowhere pleaded that there is already partition. The father of the plaintiff was one of the joint grantee and he was joint owner to an extent of ?rd share in the total extent of 38 guntas granted jointly in the name of three persons including the father of the plaintiff and since the plaintiff being the only daughter and legal heir she is entitled to succeed to the said property and since the father of the plaintiff is no more, she is entitled to equal share of her father. 13. 13. Considering the averments made in the plaint, the Trial Court recorded a specific finding that, "the plaint clearly discloses that the plaintiff is claiming her right of share in 38 guntas of land in Sy. No. 9 on the ground that her father along with father of defendants Nos. 1, 2 and 6 and one Munikempaiah granted the land and after the death of her father, she succeeded ?rd share in the suit schedule property. The averments made in the plaint is itself clearly goes to show that the suit of the plaintiff falls under Section 8 of the Hindu Succession Act and not under Section 6 of the said Act. Apart from that in the entire plaint averments the plaintiff nowhere pleaded about the partition between her father and brothers. It is well-established principles of law that while considering the case under Order 7, Rule 11 o Code of Civil Procedure, the averments made in the plaint is to be considered and not the contention taken in the written statement of the defendants There is absolutely no material placed on record to invoke Order 7, Rule 1 ] of Code of Civil Procedure to reject the plaint". Accordingly, the Trial Cour rejected the application. 14. The Hon'ble Supreme Court, while considering the provisions o Order 7, Rule 11 of the Code of Civil Procedure, in the case of Surjit Kaw Gill and Another v. Adarsh Kaur Gill and Another (2014)16 SCC 125 held that rejection of plain can be considered only on the basis of the plaint averments and not writtei statement filed by the defendants. Paragraph 10 of the said decision reads as under: "10. With respect to these submissions, Mr. Divan pointed out that in fact there is a clear writing of respondent No.1 herein executed on 12-2-1991 which clearly states, amongst others, in para (d) that she will not claim any tenancy right or charge on the above referred property. In para (b) of that writing she agreed to render the accounts with respect to the rental income received from 1-1-1980 to 30-11-1990. In para (c) of that writing she states that with respect to the two mortgages redeemed in her name, she will not claim any charge as the amounts paid for redeeming the said mortgages were paid from the estate of Smt. Abnash Kaur. Mr. In para (c) of that writing she states that with respect to the two mortgages redeemed in her name, she will not claim any charge as the amounts paid for redeeming the said mortgages were paid from the estate of Smt. Abnash Kaur. Mr. Divan states that after executing this writing, the disputes between the parties were supposed to get settled, but then unfortunately it did not happen. Respondent No.1 started construction on the particular property in her own right. This having happened in 1992, the original plaintiff was constrained to file the suit for the partition of the property belonging to Smt. Abnash Kaur. Smt. Abnash Kaur having made a Will about her property, the original plaintiff had to see to it as the Administrator of the Will that the property is distributed in accordance therewith. This being the position, in his submission it is Article 58 which is the relevant article for all these prayers, which provides for a period of three years when the right to sue first accrues. In the present case, it will be when the dispute arose because of the conduct of respondent herein. The issue of limitation is always a mixed question of facts and law, and therefore, it could not be held that no case was made out for proceeding for a trial. Mr. C.A. Sundaram submitted that respondent disputed in writing dated 12-2-1991 and it had to be forensically tested. This submission all the more justifies that the trial had to proceed. For deciding an application under Order 7, Rule 11, one has to look at the plaint and decide whether it deserved to be rejected on the ground raised. In our view, the view taken by the Division Bench is clearly erroneous. The appeal is therefore allowed and the judgment and order (Adarsh Kaur Gill v. Ajit Singh, (2009)157 DLT 137 ) of the Division Bench is set aside. The application made under Order 7, Rule 11 moved by respondent No.1 herein will stand rejected. We may however clarify that all the observations herein are only for the purpose of deciding this appeal." 15. The application made under Order 7, Rule 11 moved by respondent No.1 herein will stand rejected. We may however clarify that all the observations herein are only for the purpose of deciding this appeal." 15. Admittedly in the present case, the present petitioner who is 7th defendant filed the present application on the ground that the present suit is filed by the plaintiff under Section 6 of the Hindu Succession Act and there was partition prior to 20th December, 2004 and therefore, the present suit is not maintainable. The entire pleadings and the written statement, application and affidavit alleged to have been filed clearly indicates that the 7th defendant made an attempt to reject the plaint at the threshold only on the basis of the pleadings of the written statement and pleadings in the application, which is impermissible in law. 16. For the reasons stated above, the point raised for consideration in the present civil revision petition has to be held in the affirmative holding that the Trial Court is justified in rejecting the application filed under Order 7, Rule 11 of the Code of Civil Procedure. 17. For the aforesaid reasons, the impugned order passed by the Trial Court is just and proper, no interference is called for under the revision powers of this Court. Accordingly, civil revision petition is dismissed. All the contentions of both the parties are kept open.