Mixed questions of law and fact require complete trial consideration rather than immediate rejection under Order VII Rule 11 of CPC.

ORDER :

1. Heard Sri.B.M.Mala Swamy, learned counsel for the revision petitioner and Sri.R.B.Sadasivappa, learned counsel for the respondent Nos.1 to 4.

2. Present revision petition is filed by the defendant Nos.1 to 3 in O.S.No.5319/2023, challenging the dismissal of the application filed by them under Order VII Rule 11(d) of Code of Civil Procedure (hereinafter ‘CPC’ for short) in O.S.No.5319/2023 dated 14.03.2024.

3. Facts in the nutshell for disposal of the present revision petition are as under:

3.1. A suit came to be filed by the plaintiffs who are respondent Nos.1 to 4 with the following relief in respect of following properties (hereinafter referred to suit properties):

PRAYER

“Therefore, under the circumstances, the plaintiffs above named pray that this Hon’ble Court be pleased to pass judgment and decree;

1. For partition and separate possession in the suit schedule properties to the plaintiffs and to the 4th defendant as per the ratio more fully mentioned in the registered "WILL CUM TRUST DECLARATION" deed dated 23/03/1985 executed by late Smt. Siddamma, i.e.. grandmother of the 1" plaintiff and the defendant and mother of late Dr. L Shivalingaiah.

2. Consequently declare that the alleged WILL, dated 11/07/2019 alleged to have been executed by late Dr. L. Shivalingaiah and two alleged Registered gift deeds dated 19/01/2019 said to have been executed by late Dr. L. Shivalingaiah as the said documents are bogus documents created fraudulently by the 1" defendant and hence, the same are hull and void and are not binding on the rights of the plaintiffs and the defendants 4 to 6 and consequently, the same are required to be declared as void documents and hence not binding on the rights of the plaintiffs.

3. Declare that unregistered deed of declaration dated 15/08/1993 is not binding on the plaintiffs as the plaintiffs 2 to 4 and wife of Dr. L. Shivalingaiah by name Sri. Thejovathi are not the signatories and the signature of the plaintiff No.1 Dr. L. Shivalingaiah exercising undue influence by suppressing the taken by “WILL CUM TRUST DECLARATION” deed executed by late Smt. Siddamma dated 23/03/1985.

4. Further declare that the 1 defendant is not the wife of late Dr. L. Shivalingaiah as claimed by the 1^st defendant in order to knock off the properties of late Dr. L Shivalingaiah and Smt. Siddamma and their family members.

5. For permanent injunction restraining the defendants and their agents, servants or any person claiming under the defendants herein from interfering with the plaintiffs lawful and peaceful possession and enjoyment with respect to the house property situated at Upper Palace Orchard, Sadashivanagar, RMV Extension, Bengaluru, ie, Item No-8 of the schedule property

6. For permanent injunction restraining the defendants and their agents, servants or any person claiming under the defendants herein from alienating or otherwise encumbering the suit schedule properties in any manner.

7. And grant such other retails as this Hon'ble Court deems fit under the circumstances of the case excluding cost, in the interest of justice and equity.”

SCHEDULE 'A' PROPERTY

ITEM NO.1:

The agricultural band measuring 18 guntas in Sy. No.29/1, 29/5, 29/6, 34/3, 34/4, 34/5 in total measuring an extent of 19,602 Square feets, situated in Audugudi Village, Kasaba Hobli, Bengaluru South Taluk, and bounded on:

East by: Sy. No.29/2

West by: Sy. No.29/4

North by: Sy. No 34/1

South by: Sy. No.34/6

ITEM NO.2

Property bearing Site No.31, BBMP Ward No.70, Shanthinagar, measuring 9,153 sq ft. bearing BBMP PID No.70-89-31 situated at 'C' Cross Road, Adugodi village, Vinayaka Nagar, Bengaluru and bounded on the:

East by: Road

West by: Road

North by: Private property:

South by: ‘C' Cross road.

ITEM NO.3

Property bearing Site No.32, BBMP Ward No.70, Shanthinagar, measuring 3226.20 sq. ft. bearing BBMP PID No.70-89-32 situated at 'C' Cross Road, Adugodi village, Vinayaka