- (1.)Leave granted.
(2.)This appeal is directed against an order passed by the High Court dated February 10, 2011 whereby the application filed by the respondent herein under Order VII Rule 11 of the Code of Civil Procedure (for short 'the Code') was allowed and the plaint was rejected. The High Court set aside the order passed by the Trial Court refusing such prayer.
(3.)The facts of the case, briefly, are as follows :
3.1) A suit was filed for declaration and injunction by the appellant along with Smt. Ashima Sen, mother of the present appellant. The appellant herein and plaintiff No.1 (the mother) filed a suit being Title Suit being No.2430 of 2007 before the City Civil Court at Calcutta, and the following reliefs were prayed for in the said suit :

"a) For a decree for declaration that the defendant, his men and agents have no right to obstruct the user of the suit flat by the plaintiffs by any means prejudicial to the interest of the plaintiffs.

b) For a decree permanent injunction restraining the defendants, their men, agents and associated from causing any obstruction towards free ingress and egress of the plaintiffs, for use and occupation of the suit flat at 5, Netai Babu Lane, Kolkata- 700 012, in any manner prejudicial to the interst of the plaintiffs.

c) Temporary injunction with ad-interim order in terms of prayer (b) above;

d) Commission;

e) Costs of the suit

f) Any other relief or reliefs as the Ld. Court may deem fit and proper"

3.2) The said suit was filed on the facts stated in the plaint that plaintiff No. 1 (Smt. Sen) and the defendant Subhas Chandra Sil were married on 2nd June, 1986. Out of the said wedlock, plaintiff No.2 Soumik Sil was born on 20th April, 1989. Admittedly, the mother and son resided in the two rooms in the first floor of the premises No.5, Netai Babu Lane, Kolkata-700 012, being the matrimonial home of plaintiff No. 1.

3.3) Admittedly, the defendant was a joint owner of the said premises along with his two brothers. Subsequently, the eldest brother gifted his 1/3rd share in the said premises to his two brothers, and thereby the defendant and one of his brothers became the owners of the said premises in equal shares. On December 17, 1993 the said property was partitioned between them and the portions were demarcated between the two brothers.