IMPORTANT POINT
Question which would require adjudication of facts cannot be dealt with while passing order under Order VII, Rule 11 of Code of Civil Procedure.

A.P.Bhangale, J.—Heard.

2. Admit. By the consent of learned Counsel for the respective parties, the appeal is heard finally.

3. Considering the impugned order and submissions on behalf of the appellant that this appeal can be disposed of finally at the stage of admission, this Court had directed the parties to note that this appeal may be disposed of finally at the stage of admission. Thus, today, submissions are heard at the bar.

4. This appeal is directed against the order dt.14.8.2014 below Exh. Nos. 1 and 83 in Special Civil Suit No.524 of 2007 passed by 8th Joint Civil Judge (Sr.Dn.), Nagpur. On behalf of the appellant, it is submitted that the Special Civil Suit was instituted with prayers for declaration and permanent injunction as well as compensation against the respondents (original defendants) in the trial Court. The litigation between the parties has long past history since the year 1985. Regular Civil Suit No.492 of 1985 was instituted by one Ramrao Mane against Ramkhilawan etc. for possession as well as mesne profit in respect of the suit property described therein. That suit came to be dismissed on 5.4.1988 and the trial Court had accepted the claim made by the defendants for adverse possession in respect of the land in their possession. Regular Civil Appeal No.183 of 1988 was preferred against the decree but the appeal was dismissed by the learned 5th Additional District Judge, Nagpur by Judgment and Order dt.9.9.1996. The controversy was brought before this Court in Second Appeal No.161 of 1997. During pendency of that appeal, parties had entered into compromise whereby they decided to partition the suit property into four portions i.e. A, B, C and D. Portion A was allotted to plaintiff Ramrao Mane, portion B was allotted to Prabhudayal Ramkhilawan Pande (appellant herein), while portion C was allotted to predecessor of Shamsunder Pande and portion D was allotted to Ishwardayal Pande (respondents are legal heirs of said Shamsunder Pande). Thus, in respect of the alloted portions of the suit property, the rights were crystalized as above. However, the present appellant chose to institute Special Civil Suit No.524 of 2007 against legal representatives of Shamsunder Pande claiming that he is entitled for compensation in respect of Mango trees planted by him in the suit land which went to the share of Shamsunder Pande and consequent reliefs of declaration as well as permanent injunction was also prayed. It is not in dispute that, in respect of Special Civil Suit No.524 of 2007, written statement is filed on record by the defendants and the issues are also framed.

5. It is under these circumstances that the impugned order was passed for rejection of plaint under Order VII, Rule 11 (a) and (d) of the Code of Civil Procedure. The impugned order which runs into more than ten pages refers to the nature of the suit that it is for compensation, declaration and permanent injunction against the defendants. The defendants had already filed Written Statement stating therein that they wanted to raise objection as to maintainability of the suit on the ground of principle of estoppel and cause of action on the ground that previous matter was compromised in Second Appeal No.161 of 1997 in the High Court which was Second Appeal filed by Ramrao Mane. The compromise was recorded under Order XXIII, Rule 23 of the Code of Civil Procedure which was also referred to in the Written Statement. It appears from the reasons recorded by the learned Judge that the Written Statement filed by the defendants was referred to; as also the contention that, in the Second Appeal, the matter was earlier compromised in the High Court, pursuant to which the suit property was mutated and the parties were placed in possession of their respective allotments. The contention of plaintiff seeking declaration about mango trees standing in the land allotted to the defendants also appears to have been referred to by the learned Judge who rejected the