ORDER :

This revision petition is filed against the order dated

12.11.2021 passed in I.A.No.616 of 2021 in O.S.No.346 of 2015 by the IX Additional Chief Judge, City Civil Court, Hyderabad, wherein petition is filed by the petitioners/defendants under Section 11 r/w.Order VII Rule 11 and Section 151 of Code of Civil Procedure (for short ‘CPC’) to reject the plaint. O.S.No.346 of 2015 was filed by the plaintiff against the defendants to declare the plaintiff as owner of the suit schedule property and also to declare the registered Will deed bearing document No.87/III dated 24.09.2008 as null and void and also to grant perpetual injunction in favour of the plaintiff restraining the defendants or other servants, agents, workers or whomsoever claiming through them from anywhere interfering i.e., from alienating and creating any third party interest on the suit schedule property consisting of constructed house at H.No.7-1-619/A/6, Sreenivasa Nagar East, Plot No.4, Gayathri Nagar, Ameerpet, Hyderabad-38 in an area of 306 sq.yards in Sy.Nos.27 & 28 of Ammerpet Village and Mandal, Hyderabad district; and to grant mesne profits @ 30,000/- per month from the date of suit till handing over possession of suit schedule property to the plaintiff.

2. A petition under Order VII Rule 11 of CPC is filed by the petitioners stating that plaintiff has filed suit in O.S.No.190 of 2004 to declare her as adopted daughter of late M.Narasimhulu and his wife late M. Sarala Devi and the same was confirmed by this Court in CCCA.No.269 of 2006. Even, the Hon’ble Supreme Court had categorically held that the plaintiff has failed to prove that she is the adoptive daughter of late M.Narasimhulu and his wife late M. Sarala Devi in Civil Appeal No.8814/2010 and dismissed the said appeal confirming the judgment and decree of this Court. Therefore, the plaintiff had no locus standii to continue and maintain the present suit. As such there is no legal right to question legality and validity of the registered Will deed dated 24.09.2008 executed by Sarala Devi in favour of petitioners/defendants bequeathing the suit schedule property. The pleadings and documents filed in O.S.No.190 of 2004 and the pleadings and documents filed in the present suit are one and the same as such, the suit in O.S.No.346 of 2015 is barred by law of res judicata and suit is liable to be dismissed on that ground alone.

3. The respondent/plaintiff opposed the said contentions by way of filing counter stating that the details of previous litigation between the petitioners/defendants and respondent/plaintiff are not denied, but there is a curative petition pending before the Hon’ble Supreme Court vide No.4489/2021 between the respondent/plaintiff and petitioners/defendants and defendants earlier filed I.A.No.1415 of 2015 seeking rejection of plaint and the ground of res judicata is also taken in the said I.A. The said I.A.No.1415 of 2015 was dismissed as there are no ingredients to reject the plaint and also observed that res judicata is a mixed question of fact and law and it can be decided only in the trial of the suit. There is clear indication from the record that petitioners earlier filed I.A.No.1415 of 2015 under Order VII Rule 11 of CPC to reject the plaint on the same set of facts and the suit has to be dismissed on the ground of res judicata.

4. The ground taken by the petitioners under Order VII Rule 11 of CPC is res judicata and according to them it is barred by law, whereas according to the judgment of the Hon’ble Supreme Court in V Rajeshwari Vs T.C.1 res judicata being a mixed question of fact and law it cannot be considered in an application filed under

AIR 2015 SC 3357

Order VII Rule 11 (d) of CPC. Further, the Hon’ble Supreme Court in Kirti Pardeep Sood & Others Vs Keshav Sood2, observed that res judicata is a fundamental principle of law that prevents parties from re-litigating a matter that has already been conclusively decided by a competent court. However, the Supreme Court noted