BISWAJIT DAS Vs. RUMA BARH

JUDGEMENT

(1.) THIS Second Appeal has been preferred against the judgment dated 18/10/2001 passed by the learned Additional district Judge, 5th Court, Barasat in Title Appeal No. 173 of 2000, whereby he affirmed the judgment/order dated 19/9/2000 passed by the learned Munsiff, 4th Court at Sealdah in Title Suit no. 6 of 2000.

(2.) THE fact leading to the filing of this second Appeal is that the plaintiff/appellant filed a suit against the defendants praying for declaration of title and other reliefs in respect of the properties mentioned in the schedule of the plaint. The suit was contested by the defendants by filing written statement. Duringthe pendency of the said suit, the defendants filed a petition under Order VII rule 11 of the Code of Civil Procedure praying for rejection of the plaint and also challenged the maintainability of the suit, as filed by the plaintiff. Against the said petition, the plaintiff/appellant filed written objection. The learned Trial court, at the time of the hearing of the petition filed under Order VII Rule 11, code of Civil Procedure took up the question of maintainability of the suit, as was filed before him. In his impugned order the learned Trial Judge observed that although, the prayer was made for rejection of the plaint under Order VII rule 11, Code of Civil Procedure, but in fact the maintainability of the suit was under challenge. As such, the learned trial Court was pleased to treat the said petition, as filed under Order VII Rule 11 of the Code of Civil Procedure to be a petition under Order XIV Rule 2 of the Code of Civil Procedure.

(3.) AFTER hearing the parties, the learned trial Court rejected the contention of the defendants that the plaint did not disclose any cause of action. He was also pleased to hold that the suit was not barred by limitation, as claimed by the defendants and as such, it was observed that the plaint could not be rejected as per provisions of Order VII Rule 11, code of Civil Procedure, as prayed by the defendants.