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TMI Blog2021 (8) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... No.H-28A/2019 by the Additional District Judge, Bhatapara, District Balodabazar- Bhatapara (C.G.), whereby the learned Additional District Judge allowed the appeal filed by respondent No.1./plaintif arising out of order dated 22.02.2019 passed in Civil Suit No.6-A/2019 by Civil Judge Class-II, Simga, District Balodabazar-Bhatapara and remitted the case to Civil Judge Class-II, Simga. 3. Briefly stated facts of the case are that a civil suit was filed by the respondent No.1 against the appellants/defendants and State before the Civil Judge Class-II for declaration of title, permanent injunction and separation of possession as per partition. The plaint was filed with injunction application and application under Section 151 of the Code of Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imunnisa Vs. Malan Bi (dead) by Legal Representatives and Another reported in (2016) 10 SCC 315. 5. On the other hand, learned counsel for respondents supported the impugned judgment and order. Learned counsel for respondent No.1, referring the decision of Hon'ble Supreme Court in the matter of Pawan Kumar Vs. Babulal since Deceased Through Legal Representatives and Others reported in (2019) 4 SCC 367, submits that application for rejection of plaint on the ground of being barred by law in the Act and from the statement in the plaint it appears without doubt or dispute that suit is saved by Section 4 (3) (b) of the Act, such disputed question of fact has to be adjudicated on basis of evidence and cannot be decided at the stage of consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity." 8. It is clear from Sub-Section 3 to Section 4 (a) of the Act which deals with acquisitions by and in the name of a coparcener in a Hindu undivided family or the benefit of such coparceners in the family and Section 4(3)(b) of the Act deals with the trustee and the beneficiaries thereof and the other that deals with the persons standing in a fiduciary capacity and those towards whom he stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s did not file written statement and they had only filed an application under Order 7 Rule 11 of CPC. Hon'ble the Supreme Court has already held in Pawan (supra) that the disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintif in the plaint, without any doubt or dispute shows that the suit is barred by any law in force. 11. The lower appellate Court has rightly observed that the order of learned trail Court being not sustainable in the eye of law set-aside and remitted back the case to the trial Court for deciding afresh. The order of the learned appellate Court is based on proper ..... X X X X Extracts X X X X X X X X Extracts X X X X
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