IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1250 of 2006 SMT.NEELAM SINGH & ANR Versus KUMAR JAGDAMBA PRASAD SINGH @ KUMAR JAGDAMBA PRASAD ----------- 3 02.12.2008 Heard counsel for the petitioners and counsel for the opposite party. In the opinion of this Court, the impugned order rejecting the prayer of the defendants-petitioners in terms of Order VII Rule 11(d) of the Code of Civil Procedure in fact does not suffer from any jurisdictional error. It is well settled that in order to decide the question of rejection of the plaint only the averments in the plaint has to be noticed. Therefore, when the counsel for the petitioner had tried to raise the question that in the garb of assailing the deed of gift dated 28.6.1995 the plaintiffs were questioning the sale deed dated 27.9.1961 by which the donee is said to have acquired title. This Court had itself carefully gone into the pleadings in the entire plaint. From the perusal of the plaint as a whole, particularly its paragraph No.9, it is absolutely clear that the challenge to the deed of gift of the year,1995 by filing a suit in the year, 1996 was confined to certain immediate events and therefore, a reference to the gifted property being a joint family property or otherwise, had not much of a bearing specially in the context of the relief sought in the plaint. That apart, the suit in hand is by one son against another son in respect of a deed of gift by the mother. The question of the suit being barred by limitation therefore in terms of the relief has to be - 2 - gone into precisely with the pleadings as they exist in the plaint, whatever be the explanation of the defendant-petitioner in the written statement, cannot be gone into at this stage. Thus the Court below has committed no error in examining the averments in the plaint and recording a finding that the pleading of limitation in this case being a mixed question of fact and law will be gone into at the stage of final hearing of the suit. Thus on that score the plaint cannot be rejected in terms of Order VII Rule 11(d) of the Code of Civil Procedure. Counsel for the petitioner then contended that while deciding this issue in the impugned order, the Court below has recorded that the suit property was a joint family property which in fact would amount to putting the cart before the horse. He would submit that if this finding of the Court below in the impugned order is allowed to remain it will virtually ruin the entire defence of the defendant-petitioner. In the opinion of this Court, such apprehension is wholly misconceived inasmuch as it is well settled that any finding arrived by deciding an interlocutory matter in a suit will never be the reason or factor for deciding the suit. Such issue as to whether, the suit property was a Hindu Undivided Family property or was a self acquired property will definitely be gone into or decided in the light of the evidence on record while disposing of the suit finally. With the aforementioned observations, this Civil Revision application is dismissed. Bibhash (Mihir Kumar Jha, J.)