JUDGMENT :

The plaintiff-appellant filed this regular first appeal against the judgment dated 27.03.2018 made on I.A.No.2 in O.S.No.40/2017 allowing the application filed by the defendants under Order VII Rule 11 (d) of Code of Civil Procedure thereby dismissing the suit as barred by law and hit by Section 11 of Code of Civil Procedure.

I. Facts of the Case:

2. The present appellant-plaintiff filed suit for partition and separate possession in respect of suit schedule A, B and C properties more fully described in schedule plaint contending that plaintiff is son of the first defendant and the second defendant is the wife of one late Rajshekar, who was real brother of plaintiff and son of the first defendant. The plaintiff and the defendants together constituted Hindu joint family guided by Mitakshara School of Hindu law. The suit schedule A, B and C properties are the ancestral joint family properties of the plaintiff and defendants. The said properties are left by the father of the plaintiff and husband of defendant No.2 and father-in-law of defendant No.2, namely, Late Baswanth Rao. After the demise of said Baswanth Rao, the plaintiff being the karta of the family, looked after the suit schedule A, B and C properties.

3. It is further case of the plaintiff that late Baswanth Rao has two sons namely plaintiff and husband of the second defendant namely Rajshekar and six daughters and all are married prior to 1950, 1965, 1972, 1977 and 1985. Baswanth Rao died on 04.05.1969, therefore, the daughters are not made as parties to the suit. It is further contended that in the suit schedule joint family properties there was no partition and separate possession. Hence, he filed the suit for partition and separate possession. The first defendant did not file written statement and the second defendant filed written statement, denied the plaint averments and contended that the suit filed by the plaintiff for partition and separate possession is not maintainable as there was already partition. The suit filed by the husband of defendant No.2 in O.S.No.33/2003, which came to be decreed in terms of compromise entered into between the parties. Therefore, the present suit is not maintainable.

4. In the meanwhile, the 2nd defendant filed application under Order VII Rule 11 read with 151 of Code of Civil Procedure seeking to reject the plaint contending that the suit filed by the plaintiff was hit by the provisions of Section 11 of CPC as there is no cause of action and suit is not maintainable in view of the earlier decree passed in O.S.No.33/2003 and the suit of the plaintiff is barred by law.

5. The said application was resisted by the plaintiff by filing objections and contended that the compromise does not operate as res judicata as the same is mixed question of law. As such, the principles of res judicata under Section 11 of CPC would not be applicable. Therefore, sought for dismissal of the application.

6. The trial Court without framing issue proceeded to consider the application and objections and by the impugned order dated 27.03.2018 allowed the application filed by the defendant for rejection of plaint and dismissed the suit as barred by law under Order VII Rule 11(d) of CPC and hit by Section 11 of CPC principles of res judicata. Hence, the present appeal is filed by the plaintiff.

II. Arguments advanced by the learned counsel for the parties:

7. We have heard the learned counsel for the parties to the lis.

8. Sri I.R.Biradar, learned counsel for the plaintiff-appellant contended that the impugned judgment passed by the trial Court allowing the application filed by the 2nd defendant thereby dismissing the suit holding that it is barred by law under Order VII Rule 11(d) of CPC and hit by Section 11 of CPC is erroneous and contrary to the material on record. He would further contend that the application filed by the 2nd defendant under Order VII Rule 11 read with Section 151 of CPC to reject the plaint on the ground that earlier suit was ended in