The main legal point established is that while deciding an application under Order 7 Rule 11, only the averments in the plaint and the documents relied on can be considered, and the respondent's defense cannot be the basis for rejecting the plaint.

JUDGMENT

Raja Basu Chowdhury, J. - This appeal is directed against the judgment and decree dated 30th October, 2017 passed by the learned Civil Judge (Senior Division) at Siliguri in Partition Suit No. 147 of 2010 (Smt. Putul Bhattacharjee & Ors. Vs. Sri Sudarshan Bhattacharjee & Ors.) whereby the learned court was, inter alia, pleased to reject the plaint by allowing an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (in short, the Code) filed by the respondent no. 1 herein, who is also the defendant no. 1 in the suit.

2. Assailing the judgment and decree, as aforesaid, the instant appeal has been filed by the appellants, who are the legal heirs of the original plaintiff no.1.

3. The original plaintiff no. 1 along with the plaintiff no. 2 had filed the suit, inter alia, claiming partition of the suit property. It is the appellants' case that one Jnanesh Chandra Bhattacharjee (in short, Jnanesh), since deceased was the absolute owner and was in possession of all that landed property measuring 6 cottahs 8 chittacks more or less, situate at Subash Pally, Ward No. 20 under Siliguri Municipal Corporation. Jnanesh died intestate on 27th December, 1968 leaving behind, his widow Prativa Devi and six sons namely Sudarshan, Santosh, Susanta, Sukumar, Subash and Subrata as his legal heirs and successors. Prativa Devi having died intestate, six sons of Jnanesh jointly inherited the suit property in equal share and as such the plaintiffs and the defendants are co-owners of the suit property, each having one-sixth share therein.

4. The appellants further claim that the respondent no. 1 being the eldest son of Jnanesh used to and continues to look after the suit property and all original documents and papers relating to the suit property were in the custody of the respondent no.1.

5. The appellant's further claim that Santosh Bhattacharjee, the plaintiff no.2 in the suit had gifted his undivided one-sixth share in the suit property unto and in favour of the original plaintiff by a registered instrument executed in the year 2011. Subsequently the original plaintiff having died intestate on 12th April, 2013, the appellants have been substituted in his place and stead and are jointly entitled to two-sixth undivided share in the suit property.

6. The appellants claim that the original plaintiff's effort to effect partition amicably was turned down and hence the suit was filed praying for partition of the suit property by metes and bounds consequent upon declaration of share of the parties.

7. The respondent no. 1, who is also the defendant no.1 in the suit, has been contesting the suit by filing written statement. The order-sheet reflects that the suit was transferred to the peremptory list and the plaintiffs' first witness PW1 has been examined and documents have been marked as Exhibits (subject to objection). In course of cross examination of the plaintiffs' first witness, the respondent no. 1 filed an application under Order 7 Rule 11 read with Section 151 of the Code. At the instance of the respondent no. 1 the suit was taken out from the peremptory board. The said application was contested by the appellants. By a judgment and decree dated 30th October, 2017 the application under Order 7 Rule 11 of the Code was allowed and it was ordered that the suit is not maintainable and the plaint is rejected.

8. Mr. Partha Pratim Roy, learned advocate appearing for the appellants submit that the learned Judge erred in law in rejecting the plaint by taking into consideration facts and events which did not form part of the plaint. The decision to reject the plaint was not based on averments made in the plaint but was based on pleadings and documents filed by the respondent no.1 in his application under Order 7 Rule 11, which were disclosed for the first time in such application.

9. According to Mr. Roy, the learned Judge ought not to have relied on copies of the two documents being copies of registered deeds of sale dated 2nd July, 1965 an