Introduction V.V.S. Rao, J.-The following question is referred to this Full Bench: "whether an appeal against order as civil miscellaneous appeal under Section 104 read with Order XLIII, Rule 1 of the Code of Civil Procedure, 1908 (C.P.C. for brevity) or a regular appeal under Section 96 of the C.P.C. is maintainable against the judgment/order passed under Rule 11 of Order VII of the C.P.C.?"

Background

The plaintiffs 1 to 4 (hereafter referred to as such) are the appellants in the appeal suit as well as civil miscellaneous appeal. They instituted O.S. No. 42 of 2001 on the file of the Court of the 1st Additional District Judge, Ranga Reddy District, for partition and separate possession of plaint A, B and C properties. It was claimed that plaintiffs and defendant Nos. 1 to 18 (hereafter referred to as such) are descendants of one Molugu Ram Reddy, who died leaving behind six sons. The fifth and sixth sons died issueless and plaintiffs and defendant Nos. 1 to 18 are the respective legal representatives of other four sons, who had 1/4th share in the property left behind by Molugu Ram Reddy. They averred that the suit schedule properties are undivided Hindu joint family properties in which plaintiffs and defendant Nos. 1 to 18 have share. After the death of the original ancestor, Narasimha Reddy and Malia Reddy, two of the four surviving sons, filed O.S. No. 295 of 1984 on the file of the Court of the Additional Sub-Judge, Ranga Reddy District, for partition of Acs. 107.17 guntas situated at Kushaiguda, Hamlet of Khapra Village of Ranga Reddy District. The suit was compromised in 1988 under which all the properties were partitioned, divided and allotted to each individual. However, the suit lands abutting the road were not divided. They were kept for development purposes and remain joint. In September 2000, plaintiffs came to know that Smt. Sunitha, daughter-in-law of Ram Reddy, was given pattadar passbooks in respect of plaint 'A' schedule property. An appeal was filed before the Revenue Divisional Officer. Ranga Reddy District, When the orders of stay were vacated, a revision was filed before the Joint Collector, who ordered status quo, In spite of the same, the defendants made attempts to raise constructions ignoring objections by the plaintiffs.

2. The fifth defendant filed an application, being I.A. No. 2962 of 2001, under Order VII, Rule 11 to reject the plaint, inter alia as barred by res judicata. He pleaded as follows : After death of Molugu Ram Reddy, Narasimha Reddy and Mall Reddy instituted O.S. No. 342 of 1980, which was transferred to the Court of the Additional Subordinate Judge, Ranga Reddy District, as O.S. No. 295 of 1984. The suit covered entire property including the land in Survey Nos. 254/2 (Acs. 6.10 guntas), 227 (Ac. 0.30 guntas. 216 (part) and 219 (Ac. 1.31 guntas). In the compromise decree the immediate predecessors of plaintiff Nos. 1 and 2 agreed that they shall have no claim whatsoever in respect of the remaining suit 'A' schedule property in. future and as against defendants. As per the compromise decree the father of the second plaintiff and the father of the third plaintiff were allotted one-fourth share each. One-fourth share was also allotted to other branches. The suit schedule properties were part and parcel of the compromise decree in O.S. No. 295 of 1984, and hence the issue cannot be raised again.

Lower Court Decision

3. During the enquiry of the interlocutory application the fifth defendant marked Exs. A-1 to A-3, and the plaintiffs marked Exs. B-1 to B-22. Considering these documents the Court below recorded the finding that the compromise decree in O.S. No. 295 of 1984 was passed with the consent of all the shareholders that the plaintiffs abandoned their claim in respect of other properties except the properties allotted to them in the compromise decree and therefore, the cause of action for filing the partition suit is barred under Order II. Rule 2 (3) of the C.P.C. By an order dat