Judgment :- Arijit Banerjee, J. (1) This is an appeal from a judgment and order dated 5th August, 2014 passed by the Ld. First Court dismissing GA No.1197 of 2014 which was an application filed by the defendant No.10 in the suit for rejection of the plaint on the ground that the plaint does not disclose any cause of action against the defendant no.10 and also that the suit is barred by the laws of limitation against the defendant No.10. (2) The plaintiff has instituted the instant suit claiming, inter alia, the following reliefs: “(a) Decree for declaration that the indenture of conveyance dated March 11, 2011 being Annexure ‘D’ to the plaint is void and not binding upon the plaintiff; (b) A decree for delivery up and cancellation of the Indenture of Conveyance dated March 11, 2011, being Annexure ‘D’ to the plaint; (c) A decree for permanent injunction restraining the defendant nos. 1 to 10 and each of them whether by themselves or their agents or employees or subordinates or assigns howsoever from giving effect to and/or acting in terms of or pursuant to the Indenture of Conveyance dated March 11, 2011 being Annexure ‘D’ to the plaint in any manner whatsoever; (d) A decree directing the defendant nos. 1 to 9 to execute and register a conveyance in respect of their undivided 9/44th share, that is 20.45% share in premises No.46, Shakespeare Sarani, Kolkata-700017 being the Schedule ‘C’ property in favour of the plaintiff at a price of Rs. 1,17 crores; (e) In default of the defendant nos. 1 to 9 or any of them to execute and register the necessary conveyance transferring their undivided 9/44th share, that is 20.45% share in the premises No.46, Shakespeare Sarani, Kolkata-700017 being the Schedule ‘C’ property to the plaintiff, the Registrar, Original Side of this Hon’ble Court be directed to execute and register the necessary conveyance transferring the undivided 9/44th share, that is 20.45% of the defendant nos. 1 to 9 in premises No.46, Shakespeare Sarani, Kolkata-700017 being the Schedule ’C’ property at a price of Rs. 1.17 Crores; (f) If necessary, a decree directing the defendant No.10 to execute a conveyance in respect of the said 20.45% share in the premises No.46, Shakespeare Sarani, Kolkata-700017 being the Schedule ‘C’ property in favour of the plaintiff; (g) Mandatory injunction directing the defendant nos. 1.17 Crores; (f) If necessary, a decree directing the defendant No.10 to execute a conveyance in respect of the said 20.45% share in the premises No.46, Shakespeare Sarani, Kolkata-700017 being the Schedule ‘C’ property in favour of the plaintiff; (g) Mandatory injunction directing the defendant nos. 1 to 9 and each of them to sell, transfer and convey their undivided 9/44th share that is 20.45% share in the premises No.46, Shakespeare Sarani, Kolkata-700017 being the Schedule ‘C’ property to the plaintiff at a price of Rs. 1.17 crores;” (3) The case in the plaint is that one Ramjidass Dhanania along with his three brothers namely Dinanath (since deceased), Harkrishan Dass (since deceased) and Shankarlal (since deceased) during their lifetime were the joint owners of Premises No.46 Shakespeare Sarani, Kolkata-700017 (hereinafter referred to ‘the suit premises’), each having undivided 1/4th share in the suit premises. In or about 2002, Ramjidass claimed partition of the suit premises by filing a suit. The plaintiff and the defendant nos. 1 to 9 and the proforma defendant in the instant suit are the legal heirs of Ramjidass. Ramjidass died intestate on 26th April, 2003 during the pendency of the partition suit. Upon his death his right title and interest in respect of the undivided 1/4th share in the suit premises devolved upon the plaintiff, the defendants 1 to 9 and the proforma defendant each acquiring undivided 1/44th share in the suit premises. In the partition suit, on 20th January, 2005 a preliminary decree was passed by virtue whereof the plaintiff, the defendant nos. 1 to 9 and the proforma defendant each became the owner of 1/44th share in the suit premises. The partition suit is still pending. Ramjidass during his lifetime along with his three brothers had executed a power of attorney in favour of one Gouri Shankar Lohia who exceeded his authority and entered into a purported development agreement dated 13th October, 1982 in respect of the suit premises with the defendant No.10. In October 1985, the defendant No.10 filed a suit for specific performance of the said development agreement being CS No.619 of 1985. (4) During the pendency of the partition suit, in November 2003, the defendant nos. In October 1985, the defendant No.10 filed a suit for specific performance of the said development agreement being CS No.619 of 1985. (4) During the pendency of the partition suit, in November 2003, the defendant nos. 1 to 9 entered into a terms of settlement with the defendant No.10 being the plaintiff in CS No.619 of 1985 on the basis whereof a compromise decree was passed on 29th July 2004 in CS No.619 of 1985 which provided for sale by the defendant nos. 1 to 9 of their undivided 9/44th share in the suit premises to the defendant No.10. Being aggrieved by such decree the plaintiff preferred an appeal being APD No.145 of 2004. By an order dated 2nd November, 2006 the Hon’ble Division Bench disposed of the said appeal by observing that the terms of settlement shall not of its own create or extinguish any right. Right has to be created and extinguished in the manner laid down in the terms of settlement by execution of proper deed of conveyance duly stamped and registered. (5) It is the plaintiff’s further case that although on 29th July, 2004 the defendant nos. 1 to 9 agreed to sell their undivided 9/44th share in the said premises to the defendant No.10, when the plaintiff approached the said defendants to purchase their share by exercising his right of pre-emption, the said defendants represented that they were no longer willing to sell their share in the suit premises to the defendant No.10 and the said compromise decree had been given a go bye. During the period from December 2006 till March 2011 the plaintiff was all along given to understand by the defendant nos. 1 to 9 that none of the parties to the suit which was decreed on 29th July, 2004 has sought to execute or register any conveyance pursuant to such decree. However, the plaintiff received a letter dated 4th April, 2011 from the Advocate on record of the defendant nos. 1 to 9 wherefrom it appeared that a deed or deeds of conveyance in respect of the suit premises had been executed in favour of the defendant No.10 by the defendant nos. 1 to 9 on March 11, 2011 in respect of the undivided 9/44th share of the defendant nos. 1 to 9 in the suit premises. 1 to 9 wherefrom it appeared that a deed or deeds of conveyance in respect of the suit premises had been executed in favour of the defendant No.10 by the defendant nos. 1 to 9 on March 11, 2011 in respect of the undivided 9/44th share of the defendant nos. 1 to 9 in the suit premises. (6) On the basis of the aforesaid averments in the plaint the plaintiff has prayed for a declaration that the deeds of conveyance dated March 11, 2011 is bad and void, for delivery up and cancellation of such deeds of conveyance, in a decree directing the defendant nos. 1 to 9 to convey their undivided share in the suit premises to the plaintiff at a price of Rs. 1.17 crores and if necessary a decree directing the defendant No.10 to execute a conveyance in respect of the said 9/44th share in the suit premises in favour of the plaintiff. (7) The defendant No.10 took out an application for rejection of the plaint on the ground that the plaint does not disclose a cause of action against the defendant No.10 and also that the suit is barred by limitation as against the defendant No.10. By the impugned judgment and order the Ld. Judge has dismissed the application. Aggrieved by the same the defendant No.10 is before us by way of this appeal. Contention of the appellant:- (8) Appearing on behalf of the appellant Mr. Partha Sarathi Sengupta, Ld. Senior Counsel, referred to Section 22(1) of the Hindu Succession Act, 1956 which is set out herein under:- “S.22(1) Where after the commencement of this Act, interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in Class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.” (9) He submitted that the preferential right to acquire property in certain cases as contemplated by the said provision has been given up by the plaintiff. The plaintiff had full notice of the proposed sale of the undivided share of the defendant nos. 1 to 9 in the suit premises in favour of the defendant No.10. The plaintiff had full notice of the proposed sale of the undivided share of the defendant nos. 1 to 9 in the suit premises in favour of the defendant No.10. The plaintiff was a party to CS No.619 of 1985 filed by the defendant No.10 and, in fact, the plaintiff had appealed against the compromise decree passed in the said suit. The Appellate Court did not interfere with the decree. Hence the plaintiff’s right to sue does not survive and the plaintiff has filed a frivolous suit which has no legs to stand on. Such litigation should be nipped in the bud. (10) The second contention of Mr. Sengupta was that the suit is in any event barred by the laws of limitation. In this connection, he referred to Articles 97 and 113 of the Schedule to the Limitation Act. Article 97 provides that the period of limitation for enforcing a right of pre-emption whether the right is founded on law or general usage or on special contract is one year and the time begins to run when the purchaser takes under the sale sought to be impeached, physical possession of the whole or part of the property sold, or, where the subject-matter of the sale does not admit of physical possession of the property, when the instrument of sale is registered. Article 113 is the residuary Article which provides for a limitation period of three years for any suit for which no period of limitation is provided elsewhere in the Schedule to the Limitation Act and the time begins to run when the right to sue accrues. Mr. Sengupta submitted that whether under Article 97 or under Article 113, the suit is barred by limitation as against the defendant No.10 and the plaintiff is barred by law from impeaching the sale of the undivided shares of the defendant nos. 1 to 9 in the suit premises in favour of the defendant No.10. (11) The third contention of Mr. Sengupta was that there is no allegation against the defendant No.10 in the plaint and as such the plaint discloses no cause of action against the defendant No.10. No relief can be claimed against the defendant No.10 when there is no allegation against the defendant No.10 in the plaint. (11) The third contention of Mr. Sengupta was that there is no allegation against the defendant No.10 in the plaint and as such the plaint discloses no cause of action against the defendant No.10. No relief can be claimed against the defendant No.10 when there is no allegation against the defendant No.10 in the plaint. He placed paragraphs 16, 17, 19 and 26 of the plaint and submitted that only these paragraphs of the plaint mention the defendant No.10 but there is no allegation against the defendant No.10 in these paragraphs. Since the plaint does not disclose any cause of action against the defendant No.10, the plaint is liable to be rejected against the defendant No.10. (12) The fourth contention of Mr. Sengupta was that although a case of fraud has been pleaded in paragraph 23 of the plaint, no fraud has been alleged against the defendant No.10. In any event, the alleged particulars of fraud are, in fact, nothing fraudulent. The proposal of sale of the undivided share of the defendant nos. 1 to 9 in the suit premises to and in favour of the defendant No.10 has since crystalized into a decree which has not been interfered with by the Appellate Court. (13) Mr. Sengupta relied on the decision of the Hon’ble Supreme Court in the case of T. Arivandandam vs. T.V. Satyapal reported in AIR 1977 SC 2421 . In paragraph 5 of the said judgment the Hon’ble Apex Court observed that if on a meaningful – not formal – reading of the plaint it is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, power should be exercised under Order VII Rule 11 of the CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of cause of action, the suit should be nipped in bud and an activist Judge is the answer to irresponsible law suits. Mr. If clever drafting has created the illusion of cause of action, the suit should be nipped in bud and an activist Judge is the answer to irresponsible law suits. Mr. Sengupta also relied on the decision of the Hon’ble Supreme Court in the case of I.T.C. Ltd. vs. Debts Recovery Appellate Tribunal reported in 1998 2 SCC 70 in paragraph 16 whereof referring to the case of T. Arvindandam (supra) the Supreme Court observed that the question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to getting out of Order VII Rule 11 of the CPC. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Relying on the aforesaid two decisions Mr. Sengupta submitted that since the plaint in the instant case does not show a clear right to sue, the same should be nipped in bud by rejecting the same. (14) Mr. Sengupta then referred to a decision of the Supreme Court in the case of Ashutosh Chaturvedi vs. Prano Devi reported in AIR 2008 SC 2171 where in paragraph 8 of the judgment, while dealing with Section 22 of the Hindu Succession Act, 1956, the Supreme Court observed that a right claiming preference over a property in terms of a statute ordinarily is a weak right. (15) The last decision relied upon by Mr. Sengupta is in the case of Gadadhar Majhi vs. Jurali Mondal reported in 1995 (II) CHN 487 in paragraph 23 whereof a Ld. Single Judge of this Court observed that the language of Section 22 of the Hindu Succession Act having failed to bring out the true legislative intent, judicial interpretation thereof came to its rescue and it now seems to be clear, that Section also applies to concluded transfers and not only to contemplated ones as it its language indicates and also that the contemplating transferor should serve notice on his other Class I co-heirs before actually effecting the transfer to a stranger, failing which the intending pre-emptor may have his remedy by way of a suit in a competent Civil Court after the transfer is concluded. Relying on this decision Mr. Relying on this decision Mr. Sengupta submitted that if only a sale is made without notice, the intending pre-emptor may have his remedy by way of a suit. However, in the facts of the case the sale was not without notice to the plaintiff. (16) On the basis of the aforesaid submission Mr. Sengupta prayed that the appeal be allowed and the plaint be rejected as against the defendant No.10. Contention of the respondent No.1/Plaintiff:- (17) Appearing on behalf of the respondent No.1/plaintiff Mr. Malay Ghosh, ld. Senior Counsel contended that the demurer application has been filed by the defendant No.10 who is the stranger purchaser. The defendant nos. 1 to 9 have not filed any demurer application. It is obvious that the defendant No.10 have been set up by the defendant No.1 to 9 and the defendant No.10 is espousing their cause. (18) As regards adding the defendant No.10 as a party to the suit, Mr. Ghosh submitted that the registered conveyance in respect of the undivided shares of the defendant nos. 1 to 9 in the suit premises having been executed in favour of the defendant No.10 on 11th March, 2011, the title in respect of such share passed to the defendant No.10. As such, the defendant No.10 became a necessary party to the suit and had the defendant No.10 not been impleaded as a party, the suit would have been bad for non-joinder of necessary party. (19) Mr. Ghosh then contended that the question is whether the plaint discloses a cause of action against the defendant No.10 and not whether the plaintiff has any cause of action against the defendant No.10. He took us through the plaint and in particular laid emphasis on paragraphs 20 and 22 of the plaint and submitted that in view of the averments made in the plaint it cannot be contended that the plaint does not disclose a cause of action against the defendant No.10. In this connection, Mr. Ghosh relied on a decision of the Hon’ble Supreme Court in the case of State of Orissa vs. Klockner & Co. In this connection, Mr. Ghosh relied on a decision of the Hon’ble Supreme Court in the case of State of Orissa vs. Klockner & Co. reported in AIR 1996 Supreme Court 2140 for the proposition that in an application under Order VII Rule 11 of the CPC what the applicant/defendant has to demonstrate is that the plaint does not disclose a cause of action against the defendant/applicant and not that the plaintiff does not have a cause of action against the defendant/applicant. Mr. Ghosh also relied on a decision of the Supreme Court in the case of Mayar (H.K.) Ltd. vs. Owners & Parties, Vessel M.V. Fortune Express reported in AIR 2006 SC 1828 . Mr. Ghosh relied on paragraph 11 of the said judgment which is set out hereunder:- “From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order VII Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants.” (20) Relying on the aforesaid two judgments Mr. Ghosh submitted that the contention of defendant No.10 is that the plaint discloses no cause of action against the defendant No.10 must be rejected. (21) Mr. Ghosh then submitted that the benefits/rights arising out of Section 22 of the Hindu Succession Act are between the plaintiff and the defendant nos. 1 to 9 who are the co-sharers of the suit premises. The defendant No.10 who is a stranger cannot take shelter under Section 22 of the Hindu Succession Act. (22) As regards the point of limitation, Mr. Ghosh referred to Article 59 of the Schedule to the Limitation Act which provides that the period of limitation for filing a suit to cancel or set aside an instrument is three years from the time when the facts entitling the plaintiff to have the instrument cancelled or set aside first became known to him. He contended that as pleaded in the plaint, the plaintiff came to know of the registered conveyance only on 11th March, 2011 and the suit was filed in May, 2011. As such, the suit was filed within the prescribed time of limitation. (23) Mr. Ghosh then referred to Article 97 of the Schedule to the Limitation Act which was relied upon by Mr. Sengupta and submitted that it is nowhere pleaded in the plaint as to when the defendant No.10 took physical possession of the property in question. Physical possession implies actual possession. In this context, Mr. Ghosh relied on the decision in the case of Batul Begum vs. Mansur Ali Khan reported in XXVIII Indian Appeals 248. In that case the judicial committee of the Privy Council held that the term physical possession means personal and immediate possession. Mr. Physical possession implies actual possession. In this context, Mr. Ghosh relied on the decision in the case of Batul Begum vs. Mansur Ali Khan reported in XXVIII Indian Appeals 248. In that case the judicial committee of the Privy Council held that the term physical possession means personal and immediate possession. Mr. Ghosh submitted that the ‘physical possession’ as mentioned in Article 97 implies possession pursuant to a legally concluded sale of the property. In other words, the possession must be under a registered conveyance which was executed on 11th March, 2011 and the suit was filed in May, 2011, much within one year. Referring to Article 113 of the Schedule to the Limitation Act Mr. Ghosh submitted that the right to sue does not accrue without a registered deed of sale. In this case, the registered deed of sale having been executed on 11th March, 2011, the suit was filed within the time of limitation prescribed by Article 113. (24) Mr. Ghosh submitted that to decide a demurer application, the averments in the plaint will have to be taken to be true and correct and applying that principle, it cannot be said that the plaintiff does not disclose a cause of action against the defendant No.10. He submitted that the point of limitation also has no merits and as such, the Ld. Judge was right in dismissing the application of the defendant No.10 for rejection of the plaint. He submitted that the appeal should be dismissed. Court’s View: (25) We have considered the rival contentions of the parties and the impugned judgment and order. (26) After noting the submissions of the parties in extenso and after analysing the same the Ld. Judge has held that on a plain reading of the plaint, it cannot be said that the plaint does not disclose a cause of action on a true and meaningful reading of the plaint. It shows that the plaintiff claims a right of pre-emption consequent upon the registration of the sale deeds in favour of the applicant by the other defendants in the suit. Whether the plaintiff would succeed on such a cause of action is too early to predict and such issue should stand to trial. In so far as the plea of limitation is concerned, the Ld. Whether the plaintiff would succeed on such a cause of action is too early to predict and such issue should stand to trial. In so far as the plea of limitation is concerned, the Ld. Judge held that unless the suit is expressly barred by the laws of limitation, the plaintiff shall not be non-suited. (27) For that purpose of deciding an application under Order 7 Rule 11 of the CPC for rejection of the plaint at the threshold, it is the plaint and plaint alone which has to be considered. Order 7 Rule 11 (a) of the CPC provides that a plaint should be rejected if it discloses no cause of action. What the Court has to consider is not whether the plaintiff has a cause of action against the defendant but whether the plaint as framed discloses a cause of action. And for that purpose, it is settled law that the averments in the plaint will have to be taken to be true and correct. The plaintiff, ultimately at the trial of the suit, may not be able to prove the averments in the plaint and the suit may be dismissed on merits. However, that does not fall for consideration while deciding an application under Order 7 Rule 11 of the CPC. If the averments in the plaint at face value disclose a right to sue, the plaint cannot be rejected under Order 7 Rule 11 (a) of the CPC as in such a case it cannot be said that the plaint does not disclose a cause of action. The phrase ‘cause of action’ means every fact which it would necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. (28) We have gone through the plaint carefully. The plaintiff has alleged that the defendant nos. 1 to 9 wrongfully, illegally, fraudulently and with an intent to induce the plaintiff not to exercise his right of pre-emption represented that the agreement or proposal for transfer of their respective shares and/or interest in the suit premises has been abandoned or given a go bye or otherwise acted in such a manner so as to deceive the plaintiff. 1 to 9 wrongfully, illegally, fraudulently and with an intent to induce the plaintiff not to exercise his right of pre-emption represented that the agreement or proposal for transfer of their respective shares and/or interest in the suit premises has been abandoned or given a go bye or otherwise acted in such a manner so as to deceive the plaintiff. Particulars of such fraud have been furnished in paragraph 23 of the plaint. Whether or not the plaintiff will be successful in establishing his case at the trial of the suit does not fall for consideration at this stage. However, in our view, it cannot be said that the plaint does not disclose a cause of action. Since conveyances have been executed in favour of the defendant No.10 by the defendant No.1 to 9, in our view the defendant No.10 is a necessary party to the suit as in its absence no effective order/decree can be passed in the suit. (29) The contention of the defendant No.10 that the plaint is time barred and as such is barred by law and is liable to be rejected under Order 7 Rule 11 (d) of the CPC is also not acceptable to us. The issue of limitation is a mixed question of fact in law. Ex facie it does not appear from the plaint that the suit is barred by law. Prima facie, it appears to us that Article 59 of the Schedule to the Limitation Act applies for filing a suit to cancel or set aside an instrument which provides for a limitation period of three years from the time when the facts entitling the plaintiff to have the instrument cancelled or set aside first became known to him. As per averments in the plaint the plaintiff became aware of the registered conveyances only on 11th March, 2011 and the suit was filed in May, 2011. As such, the suit appears to have been filed within the prescribed period of limitation. However, we make it clear that the views expressed by us are only prima facie for the purpose of disposal of the present application and the defendant No.10 will be at liberty to agitate this issue at the time of trial of the suit. (30) In view of the aforesaid we are inclined to agree with the judgment and order of the Ld. (30) In view of the aforesaid we are inclined to agree with the judgment and order of the Ld. Judge sought to be impugned in this appeal. We do not find any infirmity in the said judgment and order and no ground to interfere therewith. Accordingly this appeal fails and is dismissed without any order as to costs.