Kalyan Jyoti Sengupta, J. - (1.) This motion has been taken out by the 3rd defendant for rejection of the plaint filed in the aforesaid suit and/or dismissal of the suit after filing of the written statement. The suit has been filed on the fact, disclosed in the plaint, the substance of which is as follows:- The 4th defendant being promoter constructed multi-storied building at premises No.133 Park Street, Calcutta 700 016 (hereinafter referred to as suit premises). First floor of the same was sold by the said promoter to M/s. Sanchaita Investment who in its turn sold its properietory interest in the said floor to the defendant No. 3 on or about April 21, 1982. Thereafter Commissioner appointed by the Supreme Court of India in writ petition Nos. 638 and 757 to 800 of 1983 attached the said floor. The defendant No. 3 objected to the said attachment and this objection sustained and it thereafter sold the same to the defendant No. 2 who thereafter demarcated and divided a portion in the middle of the first floor and transferred and/or sold its interest in 2288 Sq.ft thereof to the defendant No. 1 who got possession of the same on or about April 19, 1988. The first defendant agreed to transfer and/or sell its interest in the said 2288 Sq.ft to the plaintiff, and on payment of the agreed consideration of Rs. 3,80,000/ - handed over possession to the plaintiff. In the premises the plaintiff has become the owner of the said 2288 sq.ft. in the demarcated portion of the first floor of the said premises and is entitled to remain in possession lawfully, thereof. It is alleged in the plaint that the plaintiffs aforesaid right of ownership is wrongfully and illegally denied, and the defendant and each of them are threatening to invade its right, title and interest. The relief claimed in the plaint by the plaintiff is as follows : (a) "Declaration that the plaintiff is lawful owner of the property fully mentioned in Annexure 'B' to the plaint; (b) Prepetual injunction restraining the defendants and each of them whether by themselves, their servants, agents, assigns or otherwise howsoever from executing any documents of title in respect of the property fully mentioned in Annexure 'B' to the plaint or any other Deed transferring any interest therein in favour of any person other than the plaintiff; (c) Prepetual injunction restraining the defendant and each of them, whether by themselves, their servants, agents, assigns or otherwise howsoever from invading or interfering with the plaintiffs use, occupation and enjoyment in Annexure 'B' to the plaint in any manner whatsoever." 2-3. The present application has been taken out contending that going by the statements and averments of the plaint no suit could be filed, nor any relief can be obtained. Actually no cause of action has been disclosed to maintain this suit. In the plaint it has been averred that there has been an agreement for sale of the property but there is no statement and averment that ownership thereof has been conveyed by any registered instrument. Under the provisions of the law right, title and interest in an immovable property cannot be conveyed without executing written instrument followed by registration. According to the applicant the suit is fictitious and frivolous. It should not be allowed to be proceeded with even though written statement has been filed. It would not be inappropriate if past development after filing of the suit is slightly stated here. This suit was once decreed ex parte and such ex parte decree was sought to be recalled by the present applicant before the learned Trial Judge. The applicant was not successful, so appeal was preferred. Before appeal Court it appears on concession of the plaintiff ex parte decree was set aside and the suit was remanded back for hearing. The Appeal Court gave direction by order dated 4th August, 2005 that written statement was to be filed within two weeks from the date of passing of the order. Cross order for discovery within a period of fortnight thereafter and inspection was allowed to be given within a week from the date of discovery. Thereafter the suit was directed to appear in the prospective list within 4 weeks thereafter for hearing. In the context as aforesaid the present application has been taken out. 4. Mr. S. N. Mukherjee, learned Senior Advocate, appearing for the applicant, contends that the instant suit is abuse of process of the Court. From the statements and averments of the plaint it will appear that no decree for declaration of ownership can be passed as admittedly no conveyance has been executed in favour of the plaintiff under any circumstances. Therefore, the merit less plaint should be nipped in the bud. In support of this submission he has referred to decision of Supreme Court reported in AIR 1977 SC 2421. 5. He further contends that the plaint contains bald statement and the same is liable to be rejected. He has drawn my attention to Supreme Court decision rendered in case reported in (2002) 10 SCC 501. 6. His further contention is that this type of action is permissible at any stage of the suit and the Supreme Court has decided this proposition in the case reported in (2004) 3 SCC 137: (AIR 2004 SC 1801). 7. He contends further that the power of the Court under Order 7, Rule 11 of the Code, can be exercised at any stage. Another decision of the Supreme Court has been relied on by Mr. Mukherjee rendered in the case reported in (2005) 5 SCC 548 : (AIR 2005 SC 2897). 8. Mr. Ranjan Deb While appearing for the plaintiff submits that it is the instant application which is harassing and frivolous and further is an act of abuse of the process of the Court, not the suit. It is clear from the judgment and order of the appeal Court that suit has to be heard and that is why the applicant was allowed to file written statement. The suit was decreed once by the learned single Judge and while decreeing the Court must have or is deemed to have examined that the suit is maintainable and further it discloses cause of action. Before the appeal on concession the decree was set aside not on contest. Direction and order of appeal Court is very clear that suit has to be heard on merit not the way it has been sought to be done by demurer action. 9. He contends that there is averment that plaintiff has become owner and how it has become so is to be proved if denied and called for by the Court. In this demurer action the plaint alone has to be seen and nothing else. Evidence has to be brought in this suit as in the written statement ownership is denied. It is also stated in the plaint the plaintiff paid full consideration money and has been put in possession so there is part performance on the part of the plaintiff. Even assuming but not admitting the plaintiff has not acquired ownership, still the plaintiff has protectable right of possession under Section 53(A) of Transfer of Property Act. This right of possession has been wrongfully denied and further threatened to be invaded. Accordingly this suit has to be heard on evidence on this issue at least. Hence this application should be dismissed in limine. 10. I have heard the respective contentions of the learned Counsel. It is settled position of the law at this stage the plaint has to be examined only. Upon examination if it is found whether in form and substance, the justiciable right has been disclosed or relief claimed therein can be granted under the law the plaint cannot be rejected. However, the plea taken by this demurer action can be decided at the time of the trial of the suit if such plea requires reception of evidence for decision. 11. I have examined the plaint and I have narrated the short fact hereinabove. As rightly contended by Mr. Deb, the plaintiff has averred that the plaintiff is an owner, whether such averment is false or not, cannot be decided at this stage. The ownership of the property can no doubt is substantiated by a registered written instrument. According to me at this stage without giving a chance to prove either on fact or in law, issue of ownership cannot be decided on the basis of statement made in the plaint alone, for evidence is required to be placed before the Court, more particularly when the Appeal Court, in my view has also desired that the suit will have to be tried on merit. It will be evident from the order itself direction for discovery of documents has been given. Besides I find, prima facie, the plaintiff has been able to make out case of justiciable right to get substantial relief for perpetual injunction. 12. Therefore, it cannot be said prima facie that it is a fictitious or frivolous suit. The decisions of the Supreme Court cited by Mr. Mukherjee were factually different from the present one, though ratio decidendi laid down therein cannot be applied here. 13. In those decisions the Court found upon analysis of the statement and averment made in the plaints in substance were fictitious, frivolous and harassing. Here I do not find such case upon reading of the plaint. Therefore, I dismiss this application. However, the points taken in the application are kept open at the time of the trial of the suit. Application Dismissed.;