IMPORTANT POINT
The main legal point established in the judgment is that the plea of res judicata requires consideration of the pleadings, issues, and decision in the previous suit, which is beyond the scope of Order VII Rule 11. Additionally, the inclusion of the suit schedule property and the extent of the land were deemed triable issues to be decided in a full-fledged trial.

JUDGMENT

K. Lakshman, J. - Heard Mr. C.A.R. Seshagiri Rao, learned counsel for the petitioner and Mr. Dharmesh D.K. Jaiswal, learned counsel for respondent No.1 - plaintiff.

2. The present Civil Revision Petition is filed challenging the order dated 07.06.2023 in I.A. No.339 of 2021 in O.S. No.07 of 2021 passed by the Principal Senior Civil Judge at Hanumakonda, dismissing the petition filed under Order - VII, Rule 11 read with 151 of CPC.

3. The petitioner herein is defendant No.22 while respondent No.1 is the plaintiff and respondent Nos.2 to 35 are the remaining defendants.

4. For the sake of convenience, the parties hereinafter will be referred to as arrayed in O.S. No.7 of 2021.

5. The Plaintiff filed the aforesaid suit against the defendants seeking partition of the suit schedule property. While so, defendant Nos.1 and 22 to 24 filed an application vide I.A. No.339 of 2021 in O.S. No.7 of 2021 under Order - VII, Rule 11 read with Section 151 of CPC to reject the plaint on the following grounds:

i) The suit is barred by limitation;

ii) The plaint averments do not disclose the cause of action;

iii) The decree in O.S. No.86 of 1970 was a compromise decree and, therefore, there cannot be a second suit for partition of the same properties after lapse of 50 years and it operates res judicata.

6. Defendant Nos.25 to 28 filed their counter supporting the contention of defendant Nos.1 and 22 to 24.

7. Plaintiff herein filed counter contending that the suit schedule property is not a subject matter of earlier suit and the final decree in I.A. No.85 of 1971 in O.S. No.86 of 1970. The suit schedule property is in joint possession and enjoyment of the parties to the suit.

8. Defendant Nos.5 and 6 filed counter on the very same lines of the plaintiff.

9. After hearing both sides, vide order 07.06.2023, trial Court dismissed I.A.No.339 of 2021 holding that the suit schedule property in the present suit is not part and parcel of the earlier suit, that there is a cause of action to file the suit and it is within the limitation.

10. Challenging the said order dated 07.06.2023 defendant No.22 filed the present revision on the following grounds:

i) The trial Court erred in giving a finding that present suit schedule property was not included in the earlier suit;

ii) The trial Court failed to appreciate the grounds raised by the petitioner herein /defendant No.22 in its entirety;

iii) The impugned order is not based on consideration of facts and law;

11. Sri C.A.R. Seshagiri Rao, learned counsel for the petitioner herein/defendant No.22 would contend that the trial Court failed to observe that the siblings of plaintiff's father already filed a suit for partition and separate possession of the joint family properties in O.S.No.86 of 1970, the same was decreed in terms of compromise arrived between the parties. A Final decree was passed on 15.02.1971 and the same attained finality. Therefore, re-partition of the partitioned property cannot be permitted and the same cannot be reopened after 50 years. The lis in the present suit is purely of fact having been decided in earlier proceedings by a competent Court, must, in a subsequent litigation between the parties be recorded as finally decided and cannot be re-opened and more particularly, when the partition of ancestral joint family properties having been found to have taken place 50 years back. The trial Court failed to appreciate that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquishes. The trial Court failed to presume that the present suit schedule property was not included in the earlier suit. There is no pleading to the said effect. A consent decree is binding upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, has the binding force and operates as a res judicata a