Point of Law: It is settled law that while considering application filed under Order 7, Rule 11(d) of C.P.C., defence is immaterial and Court has to only look into averments of plaint and application cannot be decided based on defence of defendants.

ORDER :

Heard the learned counsel for the petitioners-defendant Nos.5 and 6 and learned counsel for the respondent No.1-plaintiff.

2. This revision petition is filed challenging the order dated 21.01.2022 passed on I.A.No.III in O.S.No.1966/2021 on the file of the IV Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, rejecting I.A.No.III filed under order 7, Rule 11(d) of CPC for rejection of plaint on the ground that suit is barred by res judicata and also later contended that the suit is also barred by limitation.

3. The main contention of the learned counsel for the petitioners-defendant Nos.5 and 6 before this Court is that the property was sold in the year 2005 itself and the plaintiff is also party to the said sale deed which is executed in favour of defendant No.4 by defendant Nos.1 to 3 and the fact that he is also a party to the said sale deed is narrated in the plaint. The learned counsel for the petitioners-defendant Nos.5 and 6 would vehemently contend that, one more suit was filed in O.S.No.5083/2005 claiming that he became the absolute owner of the property based on the testamentary document and the said suit was dismissed with cost of Rs.20,000/-and an appeal was filed in R.F.A.No.46/2013 and the same was also dismissed. The learned counsel also would submit that grandmother has also filed the suit in O.S.No.3241/1980 and when she passed away, the plaintiff as well as the mother of the plaintiff came on record as legal representatives of the grandmother and the said suit was also dismissed in the year 1991 itself.

4. The counsel also would vehemently contend that when both the suits are decided with regard to the relief of declaration and possession, the same is hit by res judicata. The counsel also would vehemently contend that the very sale deed executed in the year 2005 by the plaintiff himself along with other defendants i.e., defendant Nos.1 to 3 is the issue in question in the suit filed in the year 2021, after lapse of 16 years. The counsel also would vehemently contend that the relief is sought for declaration and possession and the Trial Court failed to take note of the principles laid in the judgment and erroneously comes to the conclusion that the matter requires to be considered in respect of both the principles of res judicta and law of limitation which involves the mixed question of fact and law. It is also contended that the Trial Court committed an error in answering point No.1 that the suit is not barred by limitation and the very approach of the Trial Court is erroneous.

5. The learned counsel for the petitioners in support of his argument, relied upon the judgment of the Apex Court in DAHIBEN VS. ARVINDBHAI KALYANJI BHANUSALI (GAJRA) DEAD THROUGH LEGAL REPRESENTATIVES AND OTHERS reported in (2020) 7 SCC 366, wherein it is observed that the plaint shall be rejected when from averments in plaint suit appears to be barred by any law. The counsel also brought to notice of this Court Para No.26, wherein it is discussed with regard to the limitation is concerned i.e., Articles 58 and 59 of the Schedule to the 1963 Act, wherein the period of limitation is prescribed for filing a suit when the right to sue first accrues and when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. The counsel also brought to notice of this Court Para No.29(2) of the judgment, wherein also the Apex Court has discussed with regard to the document which came into existence and also Para No.29(13), wherein it is observed that the plaintiffs apparently filed the suit after the property was further sold by Respondent 1 to Respondents 2 and 3, to cast a doubt on the title of Respondent 1 to the suit property and also brought to notice of this Court Para Nos.29(17), 29(18) and 29(19), wherein the Apex Court has discussed with regard to the relief sought and observed that the suit us clearly barred by limitation as per Section