For deciding an application under Order 7 Rule 11(d), only the averments in the plaint should be referred to, and the plea of res judicata required consideration of pleadings, issues, and decisions from the previous suit, which was beyond the scope of the current application.

JUDGMENT :

ARUN KUMAR JHA, J.

1. Learned Senior Counsel for the petitioner and learned counsel for the opposite parties/respondents have been heard on the last date of hearing.

2. The matter has been taken up for hearing on the point of admission but I intend to dispose of this civil revision petition at the stage of admission stage.

3. The petitioner has filed the instant civil revision petition for setting aside the order dated 03.07.2019 passed in Title Suit No. 52 of 2018, whereby and whereunder the application filed under Order 7 Rule 11 of the Code of Civil Procedure of the petitioner/defendant has been rejected by the learned Sub Judge-II, Kishanganj.

4. The case of the petitioner is that respondent no. 1/plaintiff has filed a title suit bearing No. 52 of 2018 praying for the following reliefs:

“(A) That let it be declared and adjudicated by the court that the family settlement deed dated 10.05.1979 (ten day of May one thousand nine hundred seventy-nine) vide 03.06.1980 (third day of June one thousand nine hundred eighty) Sketch Map Sutta Karkhana, Sutta Karkhana, Agriculture land and Pachhimpali Patgola in between the heirs of Late Tara Chand Mantri are not correct and the settlement never acted upon and as such not binding on the plaintiff. The defendants have no right to dispose of any properties on the basis of illegal and collusive partition deed dated 10.05.1979 and 03.06.1980.

(B) The above land involved in the said unregistered partition are the land of Mali Ram Mantri. That a preliminary decree be passed in favour of land of Mali Ram Mantri and 1/3rd share may be passed in favour of plaintiff.

(C) That it be further declared and adjudicated that the plaintiff has got every manner of right, title, interest over the schedule “B”, “B/1” and “C” property and thereby the title of the plaintiff over the schedule “B”, “B/1” and “C” be declared and defendants have no right over schedule “C1” land.

(D) That after adjudicated the said relief a decree for recovery of possession be granted and defendants be directed to submit the account of income etc. from Schedule “B” property over which the plaintiff shall pay requisite court fee accordingly.

(E) That the legal heirs of Bishamber Lal Mantri and Deokinandan Mantri be directed to give final account realised rent from the tenants of firm M/s Kanhaiya Lal Ram Narain and Suta Gaddi and Stock of firm.

(F) That the defendants be restrained not to alienate the suit land during the pendency of suit.

(G) A decree for all cost of the suit be passed in favour of the plaintiff.

(H) Any other relief or reliefs to which be plaintiff are in title to get in the opinion of the court be granted to the plaintiff against the defendants.”

5. The petitioner is defendant no. 7 who appeared before the learned court below and moved an application under Order 7 Rule 11 of the Code of Civil Procedure praying to reject the plaint.

6. A rejoinder was filed by the plaintiff/respondent no. 1 and the learned trial court after hearing the parties came to the conclusion that the plaint was not fit to be rejected under Order 7 Rule 11 of the Code of Civil Procedure and thus rejected the application of the petitioner/defendant vide impugned order dated 03.07.2019.

7. The petitioner has submitted in his petition that plaintiff/respondent no. 1 has referred in his plaint about Registered Deed No. 863 dated 20/21.06.1905 and the same has been made part of the pleading by bringing the same on record. Further case of the petitioner is that Deed No. 863 dated 20/21.06.1905 is the deed of relinquishment of the property and the said properties are not part of the property partitioned through the family settlement deed dated 10.05.1979 and 03.06.1980 which was subject matter of Title Suit No. 02 of 1989, Title Appeal (First Appeal) No. 535 of 1996 and the SLP No. 27671 of 2012, which is pending adjudication before the Hon’ble Apex Court. Further case of the petitioner is that the plaintiff/respondent no. 1 cannot seek any relief w