JUDGMENT : Sri. Sanket M. Yenagi, learned counsel for the appellants. Smt. Swamini Ganesh, learned counsel for Sri.Sandeep Patil, learned counsel for respondent No.1. Sri.M.G.Sateesha, learned counsel for respondent No.2. The appeal is admitted for hearing. With the consent of learned counsel for the parties, the same is heard finally. 2. In this appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short), the appellants have assailed the validity of the judgment dated 31.03.2016 passed by the trial Court, by which an application filed by respondent No.1 under Order VII Rules 11(a) and (d) of the Code has been allowed and the plaint filed by the appellant has been rejected. 3. The facts giving rise to filing of this appeal briefly stated are that the appellants have filed a suit seeking relief of partition and separate possession. The claim in the suit was based on the ground that the suit schedule properties originally belonged to one late Abbaiah Reddy, the grandfather of the appellants and respondent No.1. It was averred that the aforesaid property devolved on Abbaiah Reddy. It was further stated that on 20.11.1964, the suit schedule properties were subjected to partition and Registered Partition Deed was executed against the members of the family. It was further pleaded that as the father of the appellants and respondent No.1 was not alive, his share was allotted to his son i.e., respondent No.1 in the aforesaid family partition, who was the Karta of the aforesaid Joint Hindu Undivided Family. 4. It was also pleaded that during the pendency of the suit, the appellants impleaded respondent No.2 as defendant No.2, who set out the claim of beneficiary of Registered Will dated 14.07.1993 alleged to have been executed by one Munivenkatappa in respect of the Item No.4 of the suit schedule properties. Admittedly, the defendant filed the written statement in the suit. The trial Court on the basis of the pleadings of the parties framed the issues and after recording the statement of two witnesses, passed the impugned order dated 31.03.2016, by which the trial Court held that the suit filed by the plaintiffs/appellants is not maintainable as the father had expired prior to amendment in Section 6 of the Hindu Succession Act, 1956. Being aggrieved, this appeal has been filed. 5. Being aggrieved, this appeal has been filed. 5. Learned counsel for the appellants submitted that the learned trial Court ought to have appreciated that the course adopted by it for the decision is impermissible in law and the trial Court ought to have confined the decision under Order VII Rule 11 of the Code to the averments made in the plaint alone and from the averments made in the plaint, it is evident that the same cannot be said to be barred by law. 6. On the other hand, learned counsel for respondent No.1 has supported the judgment passed by the trial Court. 7. We have considered the submissions made by both the sides. Admittedly, while deciding the application under Order VII Rule 11 of the Code, the trial Court has to take into account the averments made in the plaint alone. In this connection, reference is made to the decisions of Hon’ble Supreme Court in ‘SALEEM BHAI AND ORS VS. STATE OF MAHARASHTRA AND ORS’, AIR 2003 SC 756 as well as in ‘C. NATRAJAN VS ASHIM BAI & ANR’ , AIR 2008 SC 363 . 8. From the close scrutiny of the plaint, it is evident that it does not show that the same is barred by any law. At this stage, it is stated at the bar that on the basis of the pleadings of the parties, the issues have already been framed by the trial Court. Learned counsel for respondent No.1 submits that issue with regard to the maintainability be tried as a “Preliminary Issue”. 9. It is well settled in law that an issue can be tried as preliminary issue only if any evidence is required to prove the same and if the parties express before the trial Court that they do not require any evidence with regard to maintainability of the suit, the trial Court shall decide the question with regard to maintainability of the suit as a preliminary issue. 10. 10. In view of the aforesaid submissions and in the facts of the case, the impugned order dated 31.03.2016 passed by the XXII Additional City Civil & Sessions Judge, Bengaluru is set aside and the appeal is disposed of with a direction to the trial Court that in case the parties express before the trial Court that they do not require any evidence with regard to maintainability of the suit, the trial Court shall decide the question with regard to maintainability of the suit as a “Preliminary Issue” and thereafter, may proceed to deal with the other issues, if so required, in accordance with law within a period of two months from the date of receipt of certified copy of the order passed today. With the above observations and directions, the appeal stands disposed of.