JUDGMENT : The plaintiff-appellant filed this regular first appeal against the judgment dated 27.03.2018 made on I.A.No.2 in O.S.No.40/2017 allowing the application filed by the defendants under Order VII Rule 11 (d) of Code of Civil Procedure thereby dismissing the suit as barred by law and hit by Section 11 of Code of Civil Procedure. I. Facts of the Case: 2. The present appellant-plaintiff filed suit for partition and separate possession in respect of suit schedule A, B and C properties more fully described in schedule plaint contending that plaintiff is son of the first defendant and the second defendant is the wife of one late Rajshekar, who was real brother of plaintiff and son of the first defendant. The plaintiff and the defendants together constituted Hindu joint family guided by Mitakshara School of Hindu law. The suit schedule A, B and C properties are the ancestral joint family properties of the plaintiff and defendants. The said properties are left by the father of the plaintiff and husband of defendant No.2 and father-in-law of defendant No.2, namely, Late Baswanth Rao. After the demise of said Baswanth Rao, the plaintiff being the karta of the family, looked after the suit schedule A, B and C properties. 3. It is further case of the plaintiff that late Baswanth Rao has two sons namely plaintiff and husband of the second defendant namely Rajshekar and six daughters and all are married prior to 1950, 1965, 1972, 1977 and 1985. Baswanth Rao died on 04.05.1969, therefore, the daughters are not made as parties to the suit. It is further contended that in the suit schedule joint family properties there was no partition and separate possession. Hence, he filed the suit for partition and separate possession. The first defendant did not file written statement and the second defendant filed written statement, denied the plaint averments and contended that the suit filed by the plaintiff for partition and separate possession is not maintainable as there was already partition. The suit filed by the husband of defendant No.2 in O.S.No.33/2003, which came to be decreed in terms of compromise entered into between the parties. Therefore, the present suit is not maintainable. 4. The suit filed by the husband of defendant No.2 in O.S.No.33/2003, which came to be decreed in terms of compromise entered into between the parties. Therefore, the present suit is not maintainable. 4. In the meanwhile, the 2nd defendant filed application under Order VII Rule 11 read with 151 of Code of Civil Procedure seeking to reject the plaint contending that the suit filed by the plaintiff was hit by the provisions of Section 11 of CPC as there is no cause of action and suit is not maintainable in view of the earlier decree passed in O.S.No.33/2003 and the suit of the plaintiff is barred by law. 5. The said application was resisted by the plaintiff by filing objections and contended that the compromise does not operate as res judicata as the same is mixed question of law. As such, the principles of res judicata under Section 11 of CPC would not be applicable. Therefore, sought for dismissal of the application. 6. The trial Court without framing issue proceeded to consider the application and objections and by the impugned order dated 27.03.2018 allowed the application filed by the defendant for rejection of plaint and dismissed the suit as barred by law under Order VII Rule 11(d) of CPC and hit by Section 11 of CPC principles of res judicata. Hence, the present appeal is filed by the plaintiff. II. Arguments advanced by the learned counsel for the parties: 7. We have heard the learned counsel for the parties to the lis. 8. Sri I.R.Biradar, learned counsel for the plaintiff-appellant contended that the impugned judgment passed by the trial Court allowing the application filed by the 2nd defendant thereby dismissing the suit holding that it is barred by law under Order VII Rule 11(d) of CPC and hit by Section 11 of CPC is erroneous and contrary to the material on record. He would further contend that the application filed by the 2nd defendant under Order VII Rule 11 read with Section 151 of CPC to reject the plaint on the ground that earlier suit was ended in a compromise does not operate res judicata and same is mixed question of law and facts requires framing of issue and evidence. The same has not been done by the trial Court. The same has not been done by the trial Court. He would further contend that the trial Court ought not to have proceeded to consider application thereby rejecting the plaint at the threshold without framing proper issue, without the parties allowing to adduce evidence with regard to earlier proceedings, whether that compromise entered into between the parties would amounts to res judicata or not. In the absence of the same, the impugned judgment and decree cannot be sustained. Therefore, he sought to allow the appeal. 9. In support of his contentions, the learned counsel for the appellant-plaintiff relied upon the following decisions: 1. Chhotanben and another vs. Kiritbhai Jalkrushnabhai Thakkar and Others reported in (2018) 6 SCC 442; 2. Kamala and Ors. vs. K.T.Eshwara Sa and Ors. reported in AIR 2008 SC 3174 ; 10. Per contra, Sri B.D.Hangaraki, learned counsel for the second defendant sought to justify the impugned judgment and decree and contended that the earlier suit filed by the second defendant’s husband in O.S.No.33/2003 though ended in compromise to the satisfaction of the brother of the plaintiff who have given consent, definitely the subsequent i.e. the present suit filed for partition would hit by the provisions of Section 11 of CPC. Therefore, he sought to dismiss the appeal. III. Point for consideration: 11. In view of the rival contentions urged by the learned counsel for the parties, the only one point that arises for consideration in the present appeal is: “Whether the trial Court is justified in allowing the application filed by the second defendant under Order VII Rule 11 read with Section 151 of CPC dismissing the suit as barred by law under Order VII Rule 11 (d) of CPC and hit by Section 11 of CPC without framing issue and without recording evidence is justified in the facts and circumstances of the present case?” IV. Our Consideration: 12. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully. 13. It is the specific case of the plaintiff-appellant that the plaintiff and defendants are the members of joint family and suit schedule A, B and C properties are the joint family properties and there was no partition by metes and bounds. 13. It is the specific case of the plaintiff-appellant that the plaintiff and defendants are the members of joint family and suit schedule A, B and C properties are the joint family properties and there was no partition by metes and bounds. The second defendant alone filed written statement denied the plaint averments contended that the very suit filed by the plaintiff is not maintainable in view of the earlier suit in O.S.No.33/2003, which has ended in compromise between the parties. The trial Court without framing any issues, based on the pleadings, proceeded to entertain the application filed by the second defendant under Order VII Rule 11 read with Section 151 of CPC dismissed the suit holding that the suit is barred by law under Order VII Rule 11(d) of CPC and hit by Section 11 of CPC. 14. The trial Court ought to have framed proper issues based on the averments made in the plaint and written statement. In the absence of framing of issues, the trial Court ought not to have proceeded to allow the application filed by the second defendant rejecting the plaint without proper pleadings, framing of an issue of limitation and taking of evidence. The question of limitation and res judicata is mixed question of law and fact. The same has not been considered by the trial Court. The principles of res judicata when attracted would bar another suit in view of Section 12 of CPC. The question involved is mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in earlier decree passed in O.S.No.33/2003 has to be taken either as preliminary issue or at the final hearing but the said question cannot be determined at preliminary stage by rejecting the plaint. 15. The Hon’ble Supreme Court while considering the provisions of Order VII Rule 11 and 12 of CPC in the case of Kamala and Ors vs. K.T.Eshwara Sa and Ors reported in AIR 2008 SC 3174 at para 16 and 28(8) held as under: “16. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage. 28.8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure." 16. The Hon’ble Supreme Court in later dictum in the case of Chhotanben and Another vs. Diritbhai Jalkrushnabhai Thakkar reported in (2018) 6 SCC 422 while considering the provisions of Order VII Rule 11 (d) of CPC at para 14, 15, 16 and 17 held as under: 14. After having cogitated over the averments in the plaint and the reasons recorded by the Trial Court as well as the High Court, we have no manner of doubt that the High Court committed manifest error in reversing the view taken by the Trial Court that the factum of suit being barred by limitation, was a triable issue in the fact situation of the present case. We say so because the appellants (plaintiffs) have asserted that until 2013 they had no knowledge whatsoever about the execution of the registered sale deed concerning their ancestral property. Further, they have denied the thumb impressions on the registered sale deed as belonging to them and have alleged forgery and impersonation. We say so because the appellants (plaintiffs) have asserted that until 2013 they had no knowledge whatsoever about the execution of the registered sale deed concerning their ancestral property. Further, they have denied the thumb impressions on the registered sale deed as belonging to them and have alleged forgery and impersonation. In the context of totality of averments in the plaint and the reliefs claimed, which of the Articles from amongst Articles 56, 58, 59, 65 or 110 or any other Article of the Limitation Act will apply to the facts of the present case, may have to be considered at the appropriate stage. 15. What is relevant for answering the matter in issue in the context of the application under Order VII Rule 11(d) CPC, is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order VII Rule 11(d). Only the averments in the plaint are germane. It is common ground that the registered sale deed is dated 18th October, 1996. The limitation to challenge the registered sale deed ordinarily would start running from the date on which the sale deed was registered. However, the specific case of the appellants (plaintiffs) is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers original defendant Nos.1 & 2, in favour of Jaikrishnabhai Prabhudas Thakkar or defendant Nos.3 to 6. They acquired that knowledge on 26.12.2012 and immediately took steps to obtain a certified copy of the registered sale deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original defendant Nos.1 & 2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half (1/2) portion of the land so designated towards their share. However, when they realized that the original defendant Nos.1 & 2 would not pay any heed to their request, they had no other option but to approach the court of law and filed the subject suit within two days therefrom. However, when they realized that the original defendant Nos.1 & 2 would not pay any heed to their request, they had no other option but to approach the court of law and filed the subject suit within two days therefrom. According to the appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the Trial Court opined that it was a triable issue and declined to accept the application filed by respondent No.1 (defendant No.5) for rejection of the plaint under Order VII Rule 11(d). That view commends to us. 16. The High Court on the other hand, has considered the matter on the basis of conjectures and surmises and not even bothered to analyse the averments in the plaint, although it has passed a speaking order running into 19 paragraphs. It has attempted to answer the issue in one paragraph which has been reproduced hitherto (in paragraph 7). The approach of the Trial Court, on the other hand, was consistent with the settled legal position expounded in Saleem Bhai and Others Vs. State of Maharashtra; Mayar (H.K.) Ltd. and Others Vs. Owners & Parties, Vessel M.V. Fortune Express and Others and also T. Arivandandam Vs. T.V. Satyapal. 17. These decisions have been noted in the case of Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust, where this Court, in paragraph 11, observed thus: “11. This position was explained by this Court in Saleem Bhai v. State of Maharashtra, in which, while considering Order 7 Rule 11 of the Code, it was held as under: (SCC p.560, para 9) “9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit—before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit—before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.” It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express.” V. Conclusion: 17 .For the reasons stated above, the point raised in the present appeal has to be held in negative holding that the trial Court is not justified in allowing the application filed by the second defendant under Order VII Rule 11 (d) of CPC dismissing the suit holding the suit is barred by law under Order VII Rule 11 (d) of CPC and hit by Section 11 of CPC principles of res judicata without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is mixed question of law and fact which may require not only examination of plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing. 18. In view of the aforesaid reasons, appeal is allowed. Question of limitation is mixed question of law and fact which may require not only examination of plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing. 18. In view of the aforesaid reasons, appeal is allowed. The impugned judgment dated 27.03.2018 on I.A.No.2 made in O.S.No.40/2017 is hereby set aside. The matter is remanded to the trial Court for fresh adjudication in the light of the observations made in above and to pass appropriate orders in accordance with law.