Common Judgement:

K. Lakshman, J.

1. Heard Mr. Ganta Ramakrishna, learned counsel for the appellants and Mr. Jalli Kanakaiah, learned senior counsel representing Mr. Jalli Narendar, learned counsel appearing for the respondent Nos.1 and 2. Respondent Nos.3 to 7 are formal parties.

2. The present appeal is filed assailing the order dated 24.07.2018 passed in I.A.No.140 of 2016 in O.S.No.44 of 2012 by the learned V Additional District Judge – II FTC, Warangal at Jangaon, wherein the learned trial Court rejected plaint in O.s.No.44 of 2012 on the application filed by Defendant Nos.5 and 6.

3. The appellants herein are plaintiffs and the respondent Nos.1 and 2 are defendant Nos.5 and 6.

               (For sake of convenience, the parties herein are referred to as they are referred in the suit.)

4. The plaintiffs had filed a suit in O.S.No.44 of 2012 against the defendant Nos. 5 and 6 and others, for partition and separate possession of the suit schedule properties.

5. During pendency of the said suit, Defendant Nos.5 and 6 filed an interlocutory application vide I.A.No.140 of 2016 under Order VII Rule 11 of CPC, to reject the plaint contending that the suit is not maintainable. It is nothing but misusing the judicial power of the Court and there is no cause of action for filing the said suit. The appellants, represented by their mother, filed a suit in O.S.No.21 of 1994 on the file of the Subordinate Judge, Jangaon, Warangal, seeking partition of suit schedule properties therein including the suit schedule properties in the present suit. The respondent Nos.3 to 6 were shown as defendants in the said suit and they have filed written statements stating that certain properties including the present suit schedule lands were sold out by the common ancestor late Cholleti Anantha Reddy, Kartha of the joint family and the same was accepted by the mother of the plaintiffs and therefore, they have entered into compromise for partition of the remaining suit schedule properties. Accordingly, a compromise decree dated 15.01.2002 was passed in the said suit. The said compromise decree was effected. Even then, the plaintiffs filed the present suit after a lapse of ten years with a mala fide intention. With the said submissions, they sought to reject the plaint.

6. The plaintiffs filed counter in the said application contending that as on the said date of filing the suit in O.S.No.21 of 1994, they were minors and they were represented by their mother. The suit schedule properties from that of suit schedule properties in O.S.No.21 of 1994 and the suit schedule properties in the present suit i.e. O.S.No.44 of 2012 are different and they are left out properties from that of suit schedule properties in O.S.No.21 of 1994. They have specifically pleaded the said fact in the plaint in the present suit. There is no suppression of the facts.

7. Defendant Nos.5 and 6 filed the aforesaid application to deprive the right of the plaintiffs in the suit schedule property on the ground of res judicata and cause of action, plaint cannot be rejected. They are triable aspects. With the said submissions, they sought to dismiss the aforesaid application filed by the Defendant Nos.5 and 6 seeking to reject the plaint.

8. Vide impugned order, learned trial Court rejected the plaint holding that lis in O.S.No.44 of 2012 is hit by res judicata in view of the compromise decree dated 15.02.2002 in O.S.No.21 of 1994.

9. Challenging the said order, the plaintiffs preferred the present appeal.

10. In the light of the aforesaid submissions, it is apt to note that in the plaint in the present suit, the plaintiffs specifically pleaded about the earlier suit in O.S.No.21 of 1994 filed by them and also the compromise decree passed by the Subordinate Court, Warangal at Jangoan. They were represented by their mother. Defendant Nos.1 to 3 suppressed the fact that the suit lands are in the occupation of the joint family and they have not sold the same earlier to filing of the suit in O.S.No.21 of 1994. The suit schedule properties must be construed under joint occupation of the plaintiffs and the defendant Nos.1 to 3 since they constitute a joint Hindu family. There was no severance of status though they have been residing separately.

11. They have reliable learnt that some more lands belong to the joint family are still in occupation of Defendant Nos.1 to 3, other than the suit schedule properties, but the plaintiffs are not aware about the extents and survey numbers of the lands etc. They came to know about the fraud played by the defendant Nos.1 and 2 on her mother in getting compromise decree in O.S.No.21 of 1994 and the Defendant Nos.1 to 3 tried to alienate the suit schedule properties to third parties, they have approached the defendant Nos.1 to 3 along with the elders demanding partition of the suit schedule properties. Finally, the Defendant Nos.1 to 3 did not agree for the partition. Therefore, they have filed the aforesaid suit seeking partition of the suit schedule properties, allot 29.63% of share to plaintiff, 14.18% to Defendant No.1, 44.45% of share to Defendant No.2 and 11.11% to Defendant No.3. Thus, according to the plaintiffs, the suit schedule properties in the present suit is left over properties of the joint family property. They are not covered in O.S.No.21 of 1994. They have specifically pleaded the same in the plaint.

12. Whereas, according to the defendant Nos.5 and 6, the suit in O.S.No.21 of 1994 ended in compromise, the said compromise was effected. Defendant Nos.5 and 6 purchased the property from Defendant Nos.1 and 2. Therefore, the lis in the present suit is hit by res judicata and that there is no cause of action.

13. In the plaint, the plaintiffs specifically pleaded that the cause of action for filing of the suit arose on 12.02.2012, when the plaintiffs demanded for the first time, on 26.02.2012 the date on which the Defendant Nos.1 to 3 refused to partition the said properties. Thus, they have specifically pleaded the cause of action. However, the cause of action is a mixed question of facts and law and it is a bundle of facts. The same are triable aspects. Therefore, Defendant Nos.5 and 6 cannot seek rejection of plaint contending that the suit lacks cause of action. Therefore, the said contention of the Defendant Nos.5 and 6 is untenable.

14. Sri Jalli Kanakaiah, learned senior counsel appearing for Defendant Nos.5 and 6 would contend that the suit is barred by limitation.

15. In the light of the said submission, perusal of the affidavit filed by the Defendant Nos.1 and 2 in I.A.No.140 of 2016 in O.S.No.44 of 2012 would reveal that they have not pleaded the limitation and that the suit is barred by limitation. Whereas, the plaintiffs specifically pleaded that they have demanded the Defendant Nos.1 to 3 for partition of the suit schedule properties on 12.02.2012, finally on 26.02.2012 and the defendants refused to partition the suit schedule properties. Therefore, they have filed the suit on 05.03.2012. However, it is a triable issue. Defendant Nos.5 and 6 cannot seek rejection of plaint on the ground of limitation. The said contention of the learned senior counsel is also untenable.

16. It is also the contention of the learned senior Counsel appearing for Defenadant Nos.5 and 6 that the proceedings in the present appeal are hit by doctrine of res judicata in view of the compromise decree dated 15.02.2002 in O.S.No.21 of 1994.

17. In the light of the said submission, it is apt to note that in V.Rajeshwari vs. T.C.Saravanabava((2004) 1 SCC 551) Hon’ble Supreme Court, held that identifying similarity in causes of action should be a matter for trial where documents from the first suit are studied and analyzed. Res judicata cannot be a matter of speculation or interference.

18. In Keshav Sood vs. Kirti Pradeep Sood(Civil Appeal No.5841 of 2023), the Supreme Court held as follows:-

               5. As far as scope of Rule 11 of Order VII of CPC is concerned, the law is well settled. The Court can look into only the averments made in the plaint and at the highest, documents produced along with the plaint. The defence of a defendant and documents relied upon by him cannot be looked into while deciding such application.

               6. Hence, in our view, the issue of res judicata could not have been decided on an application under Rule 11 of Order VII of CPC. The reason is that the adjudication on the issue involves consideration of the pleadings in the earlier suit, the judgment of the Trial Court and the judgment of the Appellate Courts. Therefore, we make it clear that neither the learned Single Judge nor the Division Bench at this stage could have decided the plea of res judicata raised by the appellant on merits.

19. In Pandurangan vs.T.Jayarama Chettiar(2025 INSC 825), Hon’ble Supreme Court reiterated the said principle and held that res judicata cannot be decided on assertions made in the application seeking rejection of plaint.

20. It is also relevant to note that while deciding an application filed under Order VII Rule 11 of CPC, the Court has to consider the pleadings of plaint and documents filed along with plaint. Court cannot consider the contents of petition filed under Order VII Rule 11 of CPC and the pleadings of the defendants. The said principle was also laid down by the Apex Court in Dahiben @ Arvindbhai Kalyanji Bhanusali and others((2020) 7 SCC 366).

21. In the light of the aforesaid principle, as discussed supra, it is apt to note that the plaintiffs specifically pleaded that the suit schedule properties in the present suit and the suit schedule properties in O.S.No.21 of 1994 are different. The suit schedule properties in the present suit are left over properties. They are joint family properties of the plaintiffs and Defendant Nos.1 to 3. They have also specifically pleaded that the extents and survey numbers in the said suit are different to that of the suit schedule properties in O.S.No.21 of 1994. Therefore, they are triable issues and on the said ground, trial Court cannot reject the plaint. Without considering the said aspects, learned trial Court allowed the aforesaid I.A.No.140 of 2016 filed by the defendant Nos.5 and 6 and rejected the plaint. Therefore, the impugned order is liable to set aside and accordingly it is set aside.

22. In the light of the aforesaid discussion, this appeal is allowed. The order dated 24.07.2018 passed in I.A.No.140 of 2016 in O.S.No.44 of 2012 by the learned V Additional District Judge – II FTC, Warangal at Jangaon, is set aside. As discussed supra, the suit is of the year 2012. Therefore, learned trial Court shall make an endeavour to dispose of the same strictly in accordance with law as expeditiously as possible.

23. Consequently, I.A.No.1 of 2026 is dismissed. However, the petitioners therein are at liberty to take steps to implead in the present suit in O.S.No.44 of 2012 and it is for the learned trial Court to decide the same strictly in accordance with law. However, there is no order as to costs.

Miscellaneous petitions, if any pending, in this appeal, shall stand closed.