1. The petitioners are aggrieved by an order dated 10.9.2007 whereby A an application made by the petitioners under Order 7 Rule 11 CPC was dismissed.

.2. The brief facts relevant for the purpose of deciding this petition are that respondent Om Prakash Gupta had filed a suit against his brother Subhash Chand Goel and others in respect of property No. B-1/26, Vasant Vihar, New Delhi. In the suit he alleged that the property in question measured 400 sq. yards and at the time of execution of sub-lease by the superior lesser i.e. defendant no.6, sublease was granted in the joint names of plaintiff and defendant no.1 in the year 1971. The two brothers thereafter partitioned the plot into two parts and Western portion was taken by defendant no.1 and eastern portion by the plaintiff. Both the brothers raised construction on their parts separately and after construction, occupied their constructed portions separately. Plaintiff alleged that defendant made incomplete construction of a three storeyed house on his portion of plot without obtaining a sanctioned plan from MCD and started living there in few rooms from 1992 onwards and he lived there till 18.1.1996. He then moved to 289 Tarun Enclave. On 27.1.1996. The petitioner found defendant no.2 along with masons and labours at the premises of defendant no. 1 who started working for completing the construction over the plot. The plaintiff objected to this and told defendant no. 2 that there was no sanctioned building plan. The defendant no. 2, however, did not stop the construction work. It is also stated that there was no electricity connection in the portion of defendant no.1 and defendant no.2 was trying to obtain electricity connection from defendants no.4 and 5. It is submitted that defendant no.3 MCD was duty bound to demolish the illegal structure raised by defendant no.1 but it did not do so. He filed a suit seeking following reliefs: a. Defendants no.1 and 2 be restrained from raising further construction. b. Defendant no.2 be restrained from taking physical possession of the Western portion. c. MCD be directed to demolish the illegal construction. d. DESU be restrained from giving electricity connection. e. Defendant no.1 be directed to return half portion of the property No. B-1/26, Vasant Vihar, New Delhi to plaintiff.

3. Petitioners herein filed an application under Order 7 Rule 11 CPC that the respondent/ plaintiff was not entitled to any of the reliefs as there was no cause of action. Relief No. 5 i.e. returning half portion of the property had already been given up by the plaintiff before the High Court in CR No. 1004/1997. Since the relief of returning back possession have been given up and no fresh suit has been filed, the suit for other reliefs was not maintainable.

4. The learned Civil Court observed that the first issue required trial in order to know that why defendant no.2 be not restrained from raising further construction on the disputed property and what is the locus standi of the plaintiff vis-a- vis relief. It was also observed by the court that so long as the plaint discloses some cause of action and raise some questions to be decided by a court, only because the case was weak and the respondent was not likely to succeed, was no ground for return of plaint.

5. It is settled law that while considering an application under Order 7 Rule 11 CPC court has to consider that if all the averments stated in the suit are taken true on their face value and the documents are considered whether the suit was maintainable or not. In the present case admittedly the property in question had been registered in the names of the two brothers and both had divided the plots into two parts and started enjoying their respective part from 1991 onwards. Thus, any plea of the plaintiff regarding right over the portion of defendant No.1 was barred by time and could not have been considered by the court and no relief either of possession or restraining defendant no.2 from taking pos

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