SHREE CHANDRASHEKAR,J. - (1.) Title (Partition) Suit No. 139 of 2008 was instituted by Shiv Saran Mahato and others for a preliminary decree for partition claiming 10 annas share in the suit schedule property. In the pending suit an application under Order VII Rule 11(a) and (d) r/w section 151 CPC was filed, which has been dismissed by the impugned order dated 17.12.2008. Mr. Amar Kumar Sinha, the learned counsel for the petitioner submits that in view of dismissal of Title (Partition) Suit No. 182 of 2002 which was affirmed in Title Appeal No. 53 of 2006 and Title Appeal No. 50 of 2006, the subsequent suit is not maintainable.
(2.) Order VII Rule 11 CPC reads as under: "11. Rejection of Plaint: The plaint shall be rejected in the following cases: (a) where it does disclose a cause of action; ..................................................... ......................................................... (d) where the suit appears from the statement in the plaint to be barred by any law; ...................................................... ..............................................
(3.) An application under Order VII Rule 11 is decided on the basis of the plaint averments. If a bare reading of the plaint averments would disclose that the suit is barred by any law, it is liable to be dismissed at the threshold itself. Whether a subsequent suit is maintainable, in view of dismissal of previously instituted suit or not, is a plea of defence. Evidently, such plea can be decided only after framing an issue. Plea of resjudicata is a mixed question of law and facts, which can be decided only after taking evidence.;