Plaintiffs, claiming to be successors-in-interest of deceased, instituted a suit for partition and permanent injunction against defendant No. 1, brother of deceased, claiming that plaintiffs were collectively entitled to share in suit premises .  Plaintiff’s Claim was that suit premises was purchased by their deceased father in name of defendant no. 1 and exclusive contribution being made by their father and said property was meant for benefit of all family members  Defendant No. 1 filed application under Order VII Rule 11 CPC for rejection of suit on ground that deceased did not own any property, nor was there any HUF.  Single Judge held that  only pleadings were completed but no issues were framed and no stage of evidence was arrived  and there was no occasion for Court to determine as to whether defendant No. 1 stood in a fiduciary capacity vis-a-vis his deceased brother. Court held that   suit before Single Judge could not have been out rightly rejected .It was imperative for Single Judge to weigh evidence to conclusively decide that plaintiff could not succeed in their claim that defendant No. 1 was holding suit premises in a fiduciary capacity for benefit of family members. matter was to be remanded back .