IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.212 of 2003 ----------- Laliteshwar Prasad Yadav, son of Hardeo Yadav, resident of Village Fatehpur, P.S. Paliganj, District Patna. …Defendant-Respondent-Appellant. Versus Satya Narain Mishra, son of Bhikham Mishra, resident of Village Parshurampur, P.O. Mauri, District Patna, at present Residing at village Danara, P.S. & P.S. Bikram, District Patna. ….Plaintiff-Appellant-Respondent. ----- For the Appellant : Mr. Upendra Prasad No.II, Advocate. For the Respondent : Mr. Satyendra Narayan Mishra, Advocate. ------------ 15/ 10.03.2010 Heard learned counsel for the appellant and learned counsel for the respondent. 2. This second appeal has been filed by the sole defendant-respondent-appellant challenging the judgment and decree of the learned court of appeal below. 3. The matter arises out of Title Redemption Suit No. 33 of 1994, which was filed by the sole plaintiff-appellant- respondent for redemption of mortgage claiming that he was the owner and mortgager of the suit properties on the basis of registered deed of gift dated 26.11.1991 executed by the original owner and at the time of the execution of the aforesaid deed of transfer the land donated was in mortgage to defendant-respondent through a mortgage deed dated 22.06.1987 and after execution of the deed of gift the plaintiff became the owner and also came in possession through the said mortgagee (defendant). 4. It transpires that in the said suit, the defendant filed an application dated 02.05.1995 under Order VII Rule 11 , read with 2 section 151of the Code Civil Procedure (hereinafter referred to as `the Code’ for the sake of brevity ), praying to reject the plaint on the ground that it is not maintainable and the plaintiff had no cause of action for the suit as he had sold most of the properties to a person, who was not a party to the suit. The said application was allowed by the learned trial court and the plaint was rejected by the learned Munsif, Danapur vide his judgment dated 12.12.1995 holding that the plaintiff had no cause of action for the suit as per the admitted case of the parties. 5. Against the aforesaid judgment of the trial court, the plaintiff filed Title Appeal No. 07 of 1996, which was allowed by the learned 6th Additional District Judge, Patna, vide his judgment and decree dated 03.09.2003 holding that in the plaint cause of action had been disclosed and hence there was no question of rejecting the plaint under the provision of Order VII Rule 11, read with section 151 of the Code and, accordingly, the judgment and decree of the trial court was set aside. Against the aforesaid judgment and decree of the learned court of appeal below, the instant second appeal has been filed. 6. Although learned counsel for the appellant vehemently challenges the judgment of the learned court of appeal below, but from the facts and circumstances of the case, it is quite apparent that from a perusal of the plaint, it has been rightly found that the cause of action had been disclosed therein. In the said circumstances, provision of Order VII Rule 11 of the Code is 3 clearly not applicable and the plaint cannot legally be rejected, in view of absence of any requirements provided in Order VII Rule 11 of the Code. Furthermore, it is not the case of the parties that the entire suit properties have been sold, hence, the learned court of below has to decide the extent and nature of the transfer after hearing the parties on their pleadings and evidence. 7. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgment of the learned court of appeal below nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. 8. However, since the judgment of the learned trial court rejecting the plaint in Title Redemption Suit No. 33 of 1994 has been set aside by the learned court of appeal below, the trial court will restart the proceeding of the aforesaid suit in accordance with law so that the dispute between the parties be decided expeditiously without any further delay. MPS/ ( S. N. Hussain, J. )