JUDGMENT : 1. This is plaintiff’s Second Appeal. 2. The second appeal was admitted by this Court on 24/10/2017 on the following substantial question of law: “Whether the Courts below have erred in dismissing the plaintiff’s suit for declaration of title and injunction on the point of limitation? 3. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 2A/2009. 4. Brief facts as reflected from the plaint averments are that the plaintiff has filed a civil suit before the learned Civil Judge, Class-II Kasdol claiming declaration of title and possession in share of ancestral property, mainly contending that the suit property mentioned in Schedule-A of the plaint total Khasra No.10 area measuring about 4.153 hectare land situated at Village-Katgi Tahsil-Kasdol, District-Raipur was recorded in the name of Maheshwar. Maheshwar has three sons, namely Khemchand, Lalsingh and Nekram and they have partitioned the suit property on 27.03.1986 and the name of Khemchand, Lalsingh and Nekram have been recorded in the revenue records. As per the partition, the property which has been inherited to plaintiff’s father Khemchand is described in the plaint as bearing Khasra No.114/3, 1179/1, 1200/1, 1871/3 area measuring 0.377 hectare, 0.583 hectare, 0.059 hectare & 0.081 hectare respectively. The plaintiff’s father expired on 24.07.1990 and after her marriage she was residing with her husband at Baloda, District-Bilaspur. It has been further contended that she is not aware about the proceedings to be taken place for recording of her name after death of her father. It has been further contended that earlier counsel engaged by the plaintiff is not aware about the recording her name in the revenue record of the property, therefore, after 18 years, she moved an application for recording her name which was rejected by revenue Court, Tahsildar, Kasdol by recording its finding that the daughters have no right over the joint property. 5. During pendency of revenue case, it has been brought to the notice of the plaintiff that plaintiff’s father has been given 1.10 Hectare land in the partition and rest of the property has been retained by Lalsingh and Nekram. 5. During pendency of revenue case, it has been brought to the notice of the plaintiff that plaintiff’s father has been given 1.10 Hectare land in the partition and rest of the property has been retained by Lalsingh and Nekram. It has been further contended that as per Section 4 of the Hindu Succession Act, a daughter is entitled to get property inherited by father, as such, she becomes the land owner of the property which has been received by her father as per the partition. It has been further contended as per Section 6 of Hindu Succession Act, daughter is coparcener and she is entitled to get her share in the property inherited by her father. It has been further contended that in pursuance of the rejection order passed by Tahsildar on 17.12.2008, the defendants have declined possession over the suit property to the plaintiff. This has necessitated the plaintiff to file a civil suit. On the above factual matrix, plaintiff has prayed that the property described in clause 3 of the plaint, she be declared title holder of the property and possession be kindly granted. It has also been prayed that injunction be also granted against the defendants restraining them from interference. She has also filed an application under Section 5 of the Limitation Act. 6. The learned trial Court after hearing the parties has rejected the application on the count that plaintiff has filed the application at belated stage as it is her responsibility to seek advise from her counsel and she should be in touch with the counsel, therefore, the present suit has been filed after more than one year of rejection of the application by Sub-divisional Officer, which is not a justifiable reason for filing the suit within stipulated time period and accordingly dismissed the suit. 7. Against the judgment and decree dated 17.07.2009, the plaintiff has preferred First Appeal under Section 96 of the C.P.C. which was also dismissed by the learned First Appellate Court by recording the finding that the Sub-Divisional Officer, Bilaigarh has dismissed the appeal filed by the plaintiff and after one year and four month of the rejection of the appeal, the suit was filed. The learned First Appellate Court has also recorded the finding that the counsel of the plaintiff has neither advised them nor communicate the order, which has caused delay, this cannot be sufficient reason for condoning the delay and accordingly, the appeal was dismissed. Against the dismissal of the appeal as well as rejection of the suit, the second appeal under Section 100 of the C.P.C. has been filed before this Court. This Court has admitted the appeal on the substantial question of law as stated-above. 8. Learned counsel for the appellant/plaintiff would submit that the learned trial Court has committed illegality in dismissing the suit without recording of evidence as the question of limitation is may be question of fact and law which cannot be decided without recording of evidence. He would further submit that the plaintiff was the co-sharere of the suit property and if property belongs to several co-shareres and co-share is in possession of the entire property and he must be deemed to be in possession on behalf of the all other co-sharer unless there has been ouster of co-sharers. He would further submit that mutation in the revenue records in the name of other co-share cannot declared them to be title holder of entire property. Unless the title of other co-sharer is denied. In this case, the plaintiff has specifically mentioned the fact that she was ouster by the defendant in pursuance of order dated 17.12.2008 passed by the Tahsildar and she has filed the suit on 12.02.2009, therefore, the suit cannot said to be barred by limitation. 9. He would further submit that though Section 5 of Limitation Act is not applicable in filing the suit still the learned trial Court should consider the question of limitation only after recording of evidence only. The procedure adopted by the learned trial Court as affirmed by the Appellate Court is procedure irregularity and illegality which warrants interfere by this Court and the substantial question of law deserves to be answered in favour of the appellant. 10. On the other hand, learned counsel for the respondents/ defendants vehemently opposed the submission and would that finding recorded by the trial Court as affirmed by the appellate Court, is legal and justified, as the partition has taken place prior to 18 years of filing the suit. 10. On the other hand, learned counsel for the respondents/ defendants vehemently opposed the submission and would that finding recorded by the trial Court as affirmed by the appellate Court, is legal and justified, as the partition has taken place prior to 18 years of filing the suit. This fact is known to them still they have not taken any step to file civil suit, therefore, the suit filed by the plaintiff is barred by limitation. As such, finding recorded by the trial Court as affirmed by appellate Court is legal, justified which does not warrant interference and the substantial question of law as framed by this Court deserves to be answered in negative. 11. I have heard learned counsel for the appellant and learned counsel for respondents and also perused the record of trial Court. 12. It is well settled legal position that Section 5 of the Limitation Act is not applicable in filing of the suit. Hon’ble the Supreme Court in Sunil Kumar Maity Vs. State Bank of India and another reported in 2022 SCC Online SC 77, has held at Para 12 which is extracted below:- “The National Commission therefore has grossly erred in observing in the impugned order that the appellant-complainant would be at liberty to seek remedy in the competent Civil Court and that if he chooses to bring an action in a Civil Court, he is free to file an application under Section 5 of the Limitation Act, 1963, recording the statement of Ld. Counsel for the SBI that it will not press the issue of limitation if action is brought by the complainant in a Civil Court. Such an observation/order passed by the National Commission is in utter ignorance of the provisions of the Limitation Act, in as much as Section 5 of the Limitation Act does not apply to the institution of civil suit in the Civil Court. Be that as it may, the impugned order passed by the National Commission solely relying upon the suo-moto report called for from the respondent-bank during the pendency of the revision application, being highly erroneous, deserves to be set aside and is accordingly set aside. The order passed by the State Commission is restored. The appeal stands allowed accordingly.” 13. It is well settled legal position that question of limitation may be question of law and fact. The order passed by the State Commission is restored. The appeal stands allowed accordingly.” 13. It is well settled legal position that question of limitation may be question of law and fact. For determining the issue of limitation, the pleadings of the parties or evidence, have to be considered by the Court. In the present case in hand, the defendant was not given any opportunity to file written statement and the suit was dismissed merely on the pleadings of the plaintiff, on the application filed by the plaintiff under Section 5 of the Limitation Act. The procedure adopted by the trial Court is unknown to the practice and procedure for deciding civil suit as provided under various provisions of C.P.C. Thereafter, the appellate Court has further committed illegality in not considering the procedure prescribed under C.P.C. for deciding the suit and dismissing the appeal. It is incumbent on the part of the trial Court to give an opportunity to defendant to file written statement where he can raise all the question of limitation, jurisdictional issue with regard to maintainability of the suit or he can file written statement opposing the claim of the plaintiff, thereafter, the trial Court can frame issue and decide the suit after giving opportunities to parties to lead evidence, to place substantial material on record in support of their respective contention. 14. Hon'ble the Supreme Court in Salim D. Agboatwala & others Vs. Shamalji Oddhavji Thakkar & others (Civil Appeal No. 5641 of 2021 decided on 17.09.2021) has held as under:- “13. As observed by this Court in P.V. Guru Raj Reddy vs. P. Neeradha Reddy And Others (2015) 8 SCC 331 , the rejection of plaint under Order VII Rule 11 is a drastic power conferred on the Court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order VII Rule 11. 14. When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order VII Rule 11. 14. Again as pointed out by a three member bench of this Court in Chhotanben vs. Kiritbhai Jalkrushnabhai Thakkar [ (2018) 6 SCC 422 ], the plea regarding the date on which the plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold.” 15. From the pleading made in the plaint, it is crystal clear that the plaintiff’s right was declined by other co-sharer on 17.12.2008 and thereafter, she has filed the suit. In the present case other co-sharer is in possession of the suit property and right of the one of the co-sharer i.e. plaintiffs’ share has been denied on 17.12.2008, therefore, it cannot be held without recording of evidence that the suit is barred by limitation. As such, it is incumbent on the part of the trial Court to decide the issue of limitation after recording of evidence only. 16. In absence of such procedure which is required for deciding the civil suit, the judgment and decree passed by the trial Court as affirmed by First Appellate Court, is liable to be set aside and accordingly, it is set aside. The question of law is answered in favour of the plaintiff. The defendant will be given an opportunity to file written statement, to file document in support of their case, thereafter the trial Court will decide the suit as per the procedure prescribed under the C.P.C. It is made clear this Court has not expressed anything on the merits of the case, it is further directed that the trial Court will make an endeavour to complete the trial within outer limit of two years from the first appearance of the parties. 17. The parties are directed to appear before the trial Court on 13th May, 2022. 18. With this observation, the second appeal is allowed. 19. A decree be drawn up accordingly. 20. The records be sent back to trial Court forthwith.