Rajiv Sahai Endlaw, J.;-

1. The revision petition under section 115 of the CPC and the FAO under Order 43 rule 1(r) of the CPC arise from the orders in the same suit, disposing of the applications under Order 39 Rules 1 and 2, Order 39 Rule 4 and Order 7 Rule 11 of the CPC.

2. The suit from which these petition and appeal have arisen was instituted by Shri Ashok Manchanda hereinafter referred to as the plaintiff against Shri Vijay Manchanda and Smt Poonam Manchanda hereinafter referred to as the defendants. The suit was instituted for cancellation of sale deed dated 10th August, 2000 executed by the defendant No.1 Shri Vijay Manchanda in favour of the defendant No.2 Smt Poonam Manchanda with respect to the property No.699, first floor, double storey, New Rajinder Nagar, New Delhi. It is, inter alia, the case of the plaintiff in the plaint that the plaintiff and the defendant No.1 are brothers; the defendant No.2 is the wife of the defendant No.1; that the plaintiff and the defendant No.2 had vide agreement dated 17th August, 1993 agreed to purchase the aforesaid property from one Smt Usha Sachdev and had paid the entire sale consideration to the said Smt Usha Sachdev and the property agreed to be purchased being lease hold and the execution of the sale deed thereof being not immediately possible, the said Smt Usha Sachdev had, as per practice, executed a general power of attorney with respect to the said property in favour of the defendant No.1 enabling the defendant No.1 to sell the said property; that the plaintiff and the defendant No.2 in part performance of the agreement to sell were also put into possession of the aforesaid property and were thereafter holding themselves out as owner of the said property having half share each; that the defendant No.1 however misused the power of attorney executed in his favour in pursuance to the agreement to sell aforesaid and executed sale deed of one half share in the property in favour of the defendant No.2 on 9th August, 2000 and another sale deed with respect to the other half share in the property on 10th August, 2000 thereby purporting to make his wife the defendant No.2 who under the agreement to sell was entitled to only half share in the property, the absolute owner of the property; that the plaintiff learnt of the execution of the said sale deeds only on 29th October, 2007. The plaintiff thus instituted the suit for cancellation of the sale deed dated 10th August, 2000 with respect to the one half share in the property.

3. The suit was accompanied with an application for interim relief. It appears that vide ex parte/interim order the defendants in the suit were restrained from dealing with the property.

4. The defendants contested the suit and filed an application under Order 7 Rule 11 of the CPC for rejection of the plaint and also filed an application under Order 39 Rule 4 of the CPC for vacation of the stay.

5. The trial court vide order impugned in these petitions/appeal has dismissed the application of the plaintiff under Order 39 Rules 1 and 2 of the CPC, allowed the application of the defendants under Order 39 Rule 4 of the CPC and vacated the order restraining the defendants from dealing with the property and also dismissed the application of the defendants under Order 7 Rule 11 of the CPC. 6. The Revision petition has been preferred by the defendants in the suit against the dismissal of their application under Order 7 Rule 11 of the CPC. The appeal has been preferred by the plaintiff in the suit against the order of dismissal of his application under Order 39 Rule 1 and 2 of the CPC. Both have been directed to be taken up together.

7. Since the revision petition entails the question of very maintainability of the suit, it is deemed expedient to take up the same first. The counsel for the defendants has contended that rejection of the pliant under Order 7 Rule 11 of the CPC was sought on three grounds. Firstly, on the ground of the claim for cancellation of the sale deed b

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