JUDGMENT :

1. The present application has been filed by the petitioners-defendant nos. 6 & 7 in a Partition Suit for setting aside the order dated 24-09-2019 passed by learned Sub Judge-I, Patna in Title Partition Suit No. 136/2016 by which part of the plaint has been rejected in respect of some of the defendant nos. 8-12 under Order VII Rule 11 (d) of the Code of Civil Procedure (hereinafter referred to as the “C.P.C.”).

2. The plaintiffs-respondent 1st set filed a Title Partition Suit No. 136 / 2016 seeking a decree for partition for 1/3rd share of the plaintiffs in the suit property described in Schedule I and Schedule II of the plaint by metes and bounds.

3. Short facts involved in the suit is that suit property was purchased by one Nokhelal Rai, who was the common ancestor of the plaintiffs-respondent 1st set. He died in the year 1960 leaving behind his three sons, Tilakdhari Rai, Shiv Bachchan Rai and Deo Bachchan Rai. The parties are governed by Mitakshra School of Hindu Law and there is unity of title and possession amongst them. The defendants 1st set are the successors of Tilakdhari Rai, who died in the year 1985. Plaintiff No. 1 / Deo Bachchan Rai is one of the sons of Nokhelal Rai and Plaintiff nos.-2 and 3 i.e. Azad Kumar & Mukesh Kumar are the sons of Deo Bachchan Rai. Late Nokhelal Rai purchased the suit land being item no. 1 of the Schedule I in the name of his brother-in-law namely, Lal Das Rai being 4 Anna share (25%) of the total land of the vendor and remaining 12 Anna share (75 %) was purchased by one Dev Karan Rai having total area being 31.73 acres of land at Mauja-Ram Chak, PS-Gopalpur through a registered deed of sale dated 5-8-1953. The land to the extent of share of Dev Karan Rai was auction sold on account of non payment of complete consideration by him , as such, only the land of Nokhelal Rai purchased in the name of his lender Lal Das Rai remained intact. The said Nokhelal Rai always remained as owner and in peaceful possession of the purchased property. Lal Das Rai did not have any interest in the said property. He neither had title nor he ever came in possession of the said property. The defendant nos. 8-12 in the suit being defendant 2nd set are the successors of the said Lal Das Rai. The defendant no.13, namely Rajesh Gupta is a builder in whose favour the defendant 2nd set without any legal authority has entered into an agreement in respect of the said land for development. The plaintiffs accordingly filed the suit in question for partition. The defendant 2nd set i.e. successors of Lal Das Rai appeared in the suit and filed a petition under Order 7 Rule 11 of the CPC for rejection of the plaint on 19 / 5/ 2017 (Annexure3). The ground for rejection of the plaint has been taken by the defendant 2nd set is that the suit is barred under the provisions of Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred to as the “Benami Act”). The plaintiffs filed rejoinder to the same ( Annexure – 4). According to the petitioners the suit is not barred under the provisions of the Act.

4. Learned senior counsel appearing for the petitioners assailing the impugned order submits that the learned trial court while allowing the said petition has taken into consideration the objection raised by the defendant 2nd set regarding Section 4 of the Benami Act and also taken note of the contention of the petitioners that since the date of purchase of the property by Nokhelal Rai in the name of his brother-in-law; Nokhelal Rai himself remained in possession of the said property as owner thereof and thereafter his successors are in possession. However, the court below has given a finding that prima facie there appears to be no valid cause of action for the plaintiffs against the defendant nos. 8-12 under Order VII Rule 11 (d) of the C.P.C. He next submits that the plaint cannot be rejected in part, rather it can only be rejected as a whole or not at all. However, the plea of Benami cannot be taken as a g