Res judicata requires a full trial to establish; dismissing a suit based solely on pleadings without evidence is incorrect.

JUDGMENT :

Hanchate Sanjeevkumar, J.

This appeal is filed by defendant Nos.1 to 3 challenging the judgment and decree dated 10.01.2022 passed in RA.No.92/2016 by the Court of III Additional District and Sessions Judge, Hassan, thereby the judgment and decree dated 12.01.2016 passed in O.S.No.9/2015 by the Court of the Senior Civil Judge and JMFC, Holenarasipura came to be set-aside and the matter was remanded to the trial Court for fresh consideration.

2. Parties shall be referred to as per their status before the trial Court.

3. The plaintiff has filed a suit for partition and separate possession claiming her 1/12th share and mesne profits in respect of the suit schedule properties by contending that the suit schedule properties are the joint family and ancestral properties. Defendant Nos.1 to 3 entered appearance and defendant No.2 filed written statement. During the pendency of the suit, defendant Nos.1 to 4 have filed an application under Section 11 of CPC praying for rejection of plaint. The grounds urged for rejection of plaint is that the suit filed by the plaintiff is hit by res judicata, as the prayers sought in this suit are similar to the one in O.S.No.34/1991 between the father of the plaintiff and father of defendant Nos.2 to 4 and in this regard, the trial Court has framed issue No.2 putting burden on the defendants to prove that the suit is hit by principles of res judicata.

4. The trial Court after considering application and objections filed thereto has allowed the said application and dismissed the suit as the same is not maintainable and it is hit by principle of res judicata by assigning reasons that a suit was filed between the father of the plaintiff and father of defendant Nos.2 to 4 in O.S.No.34/1991 prior to this suit for partition and the same came to be dismissed. However, the father of the plaintiff and others had challenged the judgment and decree passed in O.S.No.34/1991 before the first Appellate Court in RA.No.13/1997, which also came to be dismissed. The same came to be challenged before this Court in RSA.No.600/1999 and this Court dismissed the same by confirming the judgment and decree passed in O.S.No.34/1991.

5. The plaintiff has challenged the said order before the first Appellate Court in RA.No.92/2016 and the first Appellate Court has allowed the appeal and set-aside the judgment and decree passed by the trial Court by remanding the matter to the trial Court for fresh consideration in accordance with law by assigning reason regarding res judicata that it is a mixed question of law and fact that can be tried in the suit but there was no trial. However, the trial Court has not received any evidence to come to the conclusion that the suit is hit by res judicata, which is not correct.

6. This order of the first Appellate Court is challenged by defendant Nos.1 to 3 before this Court.

7. Learned counsel for appellants-defendant Nos.1 to 3 submits that father of the plaintiff and others have previously filed a suit in O.S.No.34/1991 for partition in respect of the very same properties by making the father of defendants as party in the suit. It is proved that the suit properties are the self acquired properties of father of defendant Nos.2 to 4. Therefore, the trial Court dismissed the said suit and the same has been confirmed by the first Appellate Court and this Court. Therefore, it is submitted that the present suit is also filed for partition in respect of the same properties, which has already been rightly considered by the trial Court and accordingly, it is held the suit is not maintainable. However, the first Appellate Court has set-aside the judgment and decree passed by the trial Court and remanded the matter to the trial Court, which is not correct. Hence, he prays to allow the appeal.

8. The trial Court framed issue No.2 putting burden on the defendants to prove that the suit is hit by principle of res judicata. For the said issue framed, the defence has been taken by the defendants in their w