ORDER : Heard the learned counsel for the petitioners-defendant Nos.5 and 6 and learned counsel for the respondent No.1-plaintiff. 2. This revision petition is filed challenging the order dated 21.01.2022 passed on I.A.No.III in O.S.No.1966/2021 on the file of the IV Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, rejecting I.A.No.III filed under order 7, Rule 11(d) of CPC for rejection of plaint on the ground that suit is barred by res judicata and also later contended that the suit is also barred by limitation. 3. The main contention of the learned counsel for the petitioners-defendant Nos.5 and 6 before this Court is that the property was sold in the year 2005 itself and the plaintiff is also party to the said sale deed which is executed in favour of defendant No.4 by defendant Nos.1 to 3 and the fact that he is also a party to the said sale deed is narrated in the plaint. The learned counsel for the petitioners-defendant Nos.5 and 6 would vehemently contend that, one more suit was filed in O.S.No.5083/2005 claiming that he became the absolute owner of the property based on the testamentary document and the said suit was dismissed with cost of Rs.20,000/-and an appeal was filed in R.F.A.No.46/2013 and the same was also dismissed. The learned counsel also would submit that grandmother has also filed the suit in O.S.No.3241/1980 and when she passed away, the plaintiff as well as the mother of the plaintiff came on record as legal representatives of the grandmother and the said suit was also dismissed in the year 1991 itself. 4. The counsel also would vehemently contend that when both the suits are decided with regard to the relief of declaration and possession, the same is hit by res judicata. The counsel also would vehemently contend that the very sale deed executed in the year 2005 by the plaintiff himself along with other defendants i.e., defendant Nos.1 to 3 is the issue in question in the suit filed in the year 2021, after lapse of 16 years. The counsel also would vehemently contend that the very sale deed executed in the year 2005 by the plaintiff himself along with other defendants i.e., defendant Nos.1 to 3 is the issue in question in the suit filed in the year 2021, after lapse of 16 years. The counsel also would vehemently contend that the relief is sought for declaration and possession and the Trial Court failed to take note of the principles laid in the judgment and erroneously comes to the conclusion that the matter requires to be considered in respect of both the principles of res judicta and law of limitation which involves the mixed question of fact and law. It is also contended that the Trial Court committed an error in answering point No.1 that the suit is not barred by limitation and the very approach of the Trial Court is erroneous. 5. The learned counsel for the petitioners in support of his argument, relied upon the judgment of the Apex Court in DAHIBEN VS. ARVINDBHAI KALYANJI BHANUSALI (GAJRA) DEAD THROUGH LEGAL REPRESENTATIVES AND OTHERS reported in (2020) 7 SCC 366 , wherein it is observed that the plaint shall be rejected when from averments in plaint suit appears to be barred by any law. The counsel also brought to notice of this Court Para No.26, wherein it is discussed with regard to the limitation is concerned i.e., Articles 58 and 59 of the Schedule to the 1963 Act, wherein the period of limitation is prescribed for filing a suit when the right to sue first accrues and when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. The counsel also brought to notice of this Court Para No.29(2) of the judgment, wherein also the Apex Court has discussed with regard to the document which came into existence and also Para No.29(13), wherein it is observed that the plaintiffs apparently filed the suit after the property was further sold by Respondent 1 to Respondents 2 and 3, to cast a doubt on the title of Respondent 1 to the suit property and also brought to notice of this Court Para Nos.29(17), 29(18) and 29(19), wherein the Apex Court has discussed with regard to the relief sought and observed that the suit us clearly barred by limitation as per Section 69 of the Limitation Act and the Trial Court ought to have considered the grounds urged in the application. 6. The counsel also relied upon the judgment of the Apex Court in RAMIAH VS. N. NARAYANA REDDY (DEAD) BY LRS. reported in (2004) 7 SCC 541 and brought to notice of this Court Para Nos.8 and 9, wherein the Apex Court has discussed with regard to invoking Article 65 of the Limitation Act, 1963 that the suit was well within time as the limitation of 12 years commenced from the date when the possession of the defendant became adverse to the plaintiff. The counsel referring this judgment would vehemently contend that, in the plaint, it is not stated as to when he has been dispossessed and though the same is discussed by the Trial Court, the Trial Court failed to take note of the said fact while considering the application. The counsel also brought to notice of this Court Para No.9, wherein the Apex Court has observed that admission of the appellant in that suit indicates ouster from possession of the appellant herein. 7. The counsel also relied upon the judgment of the Apex Court in MAJJI SANNEMMA ALIAS SANYASIRAO VS. REDDY SRIDEVI AND OTHERS reported in 2021 SCC ONLINE SC 1260 and brought to notice of this Court Para No.4, wherein the Apex Court has observed that, from the averments in the application for condonation of delay, we are of the opinion that it was a case of a gross negligence and/or want of due diligence on the part of the respondents herein. The counsel also brought to notice of this Court Para No.19, wherein the Apex Court has discussed with regard to the limitation is concerned in the case of PUNDLIK JALAM PATIL,wherein the Court has discussed that object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but, avail their legal remedies promptly. The counsel also brought to notice of this Court Para No.21 with regard to the observation made by the Court that the Court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and “do not slumber over their rights”. The counsel for the petitioners-defendant Nos.5 and 6 referring this judgment would vehemently contend that the Trial Court committed an error in not considering the grounds urged in the application. 8. Per contra, learned counsel for the respondent No.1-plaintiff would vehemently contend that the earlier suit filed is not in respect of grant made in favour of the mother i.e., occupancy right conferred in favour of the mother in the year 1988 and the earlier suit in O.S.No.5083/2005 is dismissed only on the ground that the plaintiff failed to prove the same. The other suit in O.S.No.3241/1980 is filed by the grand-mother and those suits which were decided earlier involves the very same issue with regard to granting of occupancy right in favour of the mother and even assuming that earlier there were two suits, the same cannot be a res judicata since, the issues involved between the parties are not directly or substantially involved in the subject matter and the same also to be considered only after trial and not at the stage of considering the application filed under Order 7, Rule 11(d) of C.P.C. and the defence of the parties cannot be considered while considering the application filed under Order 7, Rule 11 (d) of C.P.C. and the Court has to take note of the averments made in the plaint, while considering the application filed under Order 7, Rule 11 of C.P.C. 9. The learned counsel for the respondent No.1-plaintiff in support of his argument, relied upon the judgment of the Apex Court in SOPANRAO AND ANOTHER VS. The learned counsel for the respondent No.1-plaintiff in support of his argument, relied upon the judgment of the Apex Court in SOPANRAO AND ANOTHER VS. SYED MEHMOOD AND OTHERS reported in (2019) 7 SCC 76 , wherein the Apex Court has held that the main prayers made in the suit concerned clearly indicate that it is a suit not only for declaration but, the plaintiffs also prayed for possession of the suit land. The limitation for filing a suit for possession on the basis of title is 12 years and therefore, the suit is within limitation. Merely because one of the reliefs sought is of declaration, that will not mean that the outer limitation of 12 years is lost. In a suit filed for possession based on title, the plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land. The counsel for the respondent No.1-plaintiff referring this judgment would vehemently contend that the same is also a mixed question of fact and law and the same cannot be invoked while considering the application filed under Order 7, Rule 11(d) of C.P.C. 10. The counsel also relied upon the judgment the Apex Court in SAROOP SINGH VS. BANTO AND OTHERS reported in (2005) 8 SCC 330 and relied upon Para No.28, wherein it is observed that the statutory provisions of the limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. 11. The learned counsel for the respondent No.1-plaintiff would vehemently contend that the learned counsel for the petitioners is mainly harping upon the sale deed of the year 2005 and in the said sale deed, the plaintiff is vendor No.4. 11. The learned counsel for the respondent No.1-plaintiff would vehemently contend that the learned counsel for the petitioners is mainly harping upon the sale deed of the year 2005 and in the said sale deed, the plaintiff is vendor No.4. The counsel also brought to notice of this Court the averments made in the sale deed, wherein it is specifically stated that the plaintiff had purchased the property to the extent of 20 guntas and he had sold the same in the said sale deed and averments of the sale deed is also very clear and the same has been considered by the Trial Court while passing on order and the Trial Court has not committed any error in rejecting the application filed under Order 7, Rule 11(d) of C.P.C. 12. In reply to the arguments of the learned counsel for the respondent No.1-plaintiff, the learned counsel for the petitioners would vehemently contend that, when the Trial Court considered the other application, particularly the application filed under Order 39, Rule 1 and 2 of C.P.C., contra observations are made and brought to notice of this Court Para Nos.54, 55 and 56, wherein it is discussed with regard to granting the relief of injunction is concerned and the same is also rejected, the Trial Court ought to have considered the prayer made by the defendant Nos.5 and 6 in the application filed under Order 7, Rule 11(d) of C.P.C. 13. Having heard the respective counsel and also on perusal of the material on record, the point that would arise for consideration of this Court is: (i) Whether the Trial Court committed an error in rejecting the application filed under Order 7, Rule 11(d) of C.P.C? Point No.(i) 14. The Trial Court has passed a common order on I.A.Nos.3, 4 and 5. However, this Court has to consider point No.1 framed by the Trial Court with regard to the application filed under Order 7, Rule 11(d) of C.P.C. When an application is filed under Order 7, Rule 11(d) of C.P.C., the defendant Nos.5 and 6 have pleaded that the suit is barred by res judicata and later, contended that the suit is barred by limitation by way of an additional affidavit and the same is resisted by the respondent No.1-plaintiff by filing statement of objections. Admittedly, the defendant No.5 has not filed any written statement before the Trial Court but, invoked Order 7, Rule 11 (d) of C.P.C. 15. It is settled law that while considering the application filed under Order 7, Rule 11(d) of C.P.C., the defence is immaterial and the Court has to only look into the averments of the plaint and the application cannot be decided based on the defence of the defendants. 16. The main contention of the petitioners-defendant Nos.5 and 6 while invoking Order 7, Rule 11(d) of C.P.C. is that suit is hit by res judicata and no doubt, there are two suits filed earlier, the suit in O.S.No.5083/2005 is filed by the plaintiff seeking the relief of declaration based on the testamentary document and the present suit is filed seeking the relief of declaration and possession that the suit schedule property i.e., Sy.No.326 measuring 1 acre, 22 guntas of Amani Bellandur Khane, Varthur Hobli, Bengaluru East Taluk and specifically pleaded that the same is granted in favour of mother i.e., Kenchamma by the Land Tribunal which is stated in Para No.4 of the plaint. It is also pleaded in Para No.5 with regard to issuance of Form No.10 conferring occupancy right in favour of Kenchamma and in Para No.6, it is pleaded that the order conferring occupancy rights and consequent issuance of Form No.10 has attained finality. In Para No.7, it is also specifically stated that Kenchamma died on 14.01.2007 and then the plaintiff became the absolute owner in respect of the schedule property by virtue of intestate succession. 17. In Para No.7, it is also specifically stated that Kenchamma died on 14.01.2007 and then the plaintiff became the absolute owner in respect of the schedule property by virtue of intestate succession. 17. It is also pleaded in Para No.8 of the plaint that late Krishna Reddy, who is the father of defendant Nos.1 and 2 and deceased father of defendant No.3 claiming to be the foster son of Patel Munishamaiah was unsuccessful applicant and despite being aware of the order of the Land Tribunal conferring occupancy rights in favour of Kenchamma, got the revenue entries mutated in his name in collusion with revenue authorities and pleaded that the title is based on occupancy right granted in favour of Kenchamma and with regard to the very allegation against the defendant Nos.1 to 3 that they have sold the property in favour of defendant No.4, the Court has to look into the prayer made in the plaint, wherein it is prayed to declare that the sale deed dated 02.07.2005 executed by defendant Nos.1 to 3 in favour of defendant No.4 is null and void and the same is not binding on the plaintiff and also to declare that the registered sale deed dated 09.11.2018 executed in the name of defendant No.5 is null and void and the same is not binding and further prayed the defendant Nos.5 and 6 to quit and deliver vacant possession of the schedule property to the plaintiff. 18. When the relief is sought to dismiss the application filed under Order 7, Rule 11(d) of C.P.C. which is hit by res judicata, whether the same is barred by res judicata has to be considered only after trial and the same is a mixed question of fact and law. Whether the issue involved between the parties is directly and substantially involves the very relief sought has to be considered after trial and though there were two suits i.e., one filed by the plaintiff and another by the grand-mother and later the plaintiff also became the party to the sale deed, the said issue has to be considered during trial when mixed question of fact and law is involved. The Court has to consider whether the issues involved between the parties is directly and substantially involves the very relief sought with regard to the property in question in the earlier suit. 19. The Court has to consider whether the issues involved between the parties is directly and substantially involves the very relief sought with regard to the property in question in the earlier suit. 19. The other contention of the petitioners-defendant Nos.5 and 6 is that the suit is barred by limitation and after 16 years of execution of the sale deed, the suit is filed. The learned counsel for the respondent No.1-plaintiff also brought to notice of this Court, no doubt, the plaintiff is also party to the sale deed, wherein he was vendor No.4 and with regard to selling of property is concerned, it is specifically stated in the sale deed that he had purchased the property to the extent of 20 guntas and he had sold the same in favour of defendant No.4 which is also considered by the Trial Court. The very contention of the learned counsel for the petitioners-defendant Nos.5 and 6 is that the plaintiff is also a party to the sale deed and the same has been considered by the Trial Court that the plaintiff had purchased the property to the extent of 20 guntas and the same was sold and the law of limitation also involves mixed question of fact and law. When mixed question of fact and law is involved, it requires full-fledged trial and the Trial Court also while passing the order, in detail discussed with regard to the very grounds urged by the petitioners-defendant Nos.5 and 6 herein invoking res judicata as well as law of limitation. 20. Having perused the prayer made in the plaint and also the averments made in the plaint, the suit is filed for the relief of declaration as well as possession and when the Trial Court has also taken note of the fact that the plaintiff has not pleaded with regard to whether he was dispossessed or not and the same is also a mixed question of fact and law, the matter requires to be tried before the Trial Court and the Court has to take note of the very contention urged by the parties and the same cannot be decided in an application filed under Order 7, Rule 11(d) of C.P.C., when the disputed questions are involved between the parties and the same has to be considered only after full-fledged trial. Hence, I do not find any error committed by the Trial Court and the Trial Court, only after recording the evidence and considering the grounds which have been urged i.e., with regard to res judicata and law of limitation, can decide the same. The decisions relied upon by the learned counsel for the petitioners will not come to the aid of the petitioners and the same is a mixed question of fact and law and the same cannot be decided in an application filed under Order 7, Rule 11(d) of C.P.C. and the suit is not barred by any law. Therefore I do not find any merit in the petition. Accordingly, I answer point No.(i) as ‘negative’. Accordingly, the revision petition is dismissed.