JUDGMENT : Hanchate Sanjeevkumar, J. This appeal is filed by defendant Nos.1 to 3 challenging the judgment and decree dated 10.01.2022 passed in RA.No.92/2016 by the Court of III Additional District and Sessions Judge, Hassan, thereby the judgment and decree dated 12.01.2016 passed in O.S.No.9/2015 by the Court of the Senior Civil Judge and JMFC, Holenarasipura came to be set-aside and the matter was remanded to the trial Court for fresh consideration. 2. Parties shall be referred to as per their status before the trial Court. 3. The plaintiff has filed a suit for partition and separate possession claiming her 1/12th share and mesne profits in respect of the suit schedule properties by contending that the suit schedule properties are the joint family and ancestral properties. Defendant Nos.1 to 3 entered appearance and defendant No.2 filed written statement. During the pendency of the suit, defendant Nos.1 to 4 have filed an application under Section 11 of CPC praying for rejection of plaint. The grounds urged for rejection of plaint is that the suit filed by the plaintiff is hit by res judicata, as the prayers sought in this suit are similar to the one in O.S.No.34/1991 between the father of the plaintiff and father of defendant Nos.2 to 4 and in this regard, the trial Court has framed issue No.2 putting burden on the defendants to prove that the suit is hit by principles of res judicata. 4. The trial Court after considering application and objections filed thereto has allowed the said application and dismissed the suit as the same is not maintainable and it is hit by principle of res judicata by assigning reasons that a suit was filed between the father of the plaintiff and father of defendant Nos.2 to 4 in O.S.No.34/1991 prior to this suit for partition and the same came to be dismissed. However, the father of the plaintiff and others had challenged the judgment and decree passed in O.S.No.34/1991 before the first Appellate Court in RA.No.13/1997, which also came to be dismissed. The same came to be challenged before this Court in RSA.No.600/1999 and this Court dismissed the same by confirming the judgment and decree passed in O.S.No.34/1991. 5. However, the father of the plaintiff and others had challenged the judgment and decree passed in O.S.No.34/1991 before the first Appellate Court in RA.No.13/1997, which also came to be dismissed. The same came to be challenged before this Court in RSA.No.600/1999 and this Court dismissed the same by confirming the judgment and decree passed in O.S.No.34/1991. 5. The plaintiff has challenged the said order before the first Appellate Court in RA.No.92/2016 and the first Appellate Court has allowed the appeal and set-aside the judgment and decree passed by the trial Court by remanding the matter to the trial Court for fresh consideration in accordance with law by assigning reason regarding res judicata that it is a mixed question of law and fact that can be tried in the suit but there was no trial. However, the trial Court has not received any evidence to come to the conclusion that the suit is hit by res judicata, which is not correct. 6. This order of the first Appellate Court is challenged by defendant Nos.1 to 3 before this Court. 7. Learned counsel for appellants-defendant Nos.1 to 3 submits that father of the plaintiff and others have previously filed a suit in O.S.No.34/1991 for partition in respect of the very same properties by making the father of defendants as party in the suit. It is proved that the suit properties are the self acquired properties of father of defendant Nos.2 to 4. Therefore, the trial Court dismissed the said suit and the same has been confirmed by the first Appellate Court and this Court. Therefore, it is submitted that the present suit is also filed for partition in respect of the same properties, which has already been rightly considered by the trial Court and accordingly, it is held the suit is not maintainable. However, the first Appellate Court has set-aside the judgment and decree passed by the trial Court and remanded the matter to the trial Court, which is not correct. Hence, he prays to allow the appeal. 8. The trial Court framed issue No.2 putting burden on the defendants to prove that the suit is hit by principle of res judicata. For the said issue framed, the defence has been taken by the defendants in their written statement that the previous suit filed for partition came to be dismissed on merits after adjudication. 8. The trial Court framed issue No.2 putting burden on the defendants to prove that the suit is hit by principle of res judicata. For the said issue framed, the defence has been taken by the defendants in their written statement that the previous suit filed for partition came to be dismissed on merits after adjudication. Therefore, the application came to be filed under Section 11 of CPC praying to dismiss the suit as it is barred by principles of res judicata. 9. When issue No.2 is framed based on the pleadings made of the defendants regarding whether the present suit is hit by res judicata or not, the same is to be decided during full fledged trial. The aspect of res judicata is both mixed question of fact and law and as to how the suit is barred by principle of res judicata is to be established by leading the evidence. Before leading the evidence and without adjudicating, holding that the suit is barred by res judicata, is not correct. The defendants have taken many contentions in their written statement including the principle of res judicata. According to the appellants-defendants, same prayers have been sought in O.S.No.34/1991 filed for partition and it was substantially heard, adjudicated and dismissed on merits, which is confirmed in Regular Appeal before the first Appellate Court and also in RSA before this Court and therefore, argued the subject matter, the parties involved and the reliefs claimed in the earlier suit and the present suit are one and the same. 10. When the trial Court has not conducted trial and not received any evidence and straight away coming to the conclusion on issue No.2 that the suit is barred by res judicata is not correct. Just because the defence was taken by the defendants in the written statement that the earlier suit is substantially heard, adjudicated and dismissed on merits between the same parties in respect of the very same properties including the relief claimed, the same cannot be considered as true before leading any evidence and adjudication of fact proving of res judicata is mixed question of facts and law. Hence, only on pleadings, it cannot be decided. This aspect is correctly observed by the first Appellate Court. The trial Court has framed issue No.2 putting burden on the defendants to prove that whether the suit is hit by principle of res judicata. Hence, only on pleadings, it cannot be decided. This aspect is correctly observed by the first Appellate Court. The trial Court has framed issue No.2 putting burden on the defendants to prove that whether the suit is hit by principle of res judicata. However, the trial Court straight away coming to the conclusion only on the pleadings in written statement that the suit is hit by res judicata without conducting trial and leading evidence, is completely illegal and not justifiable. Therefore, the first Appellate Court has rightly set-aside the judgment and decree and remanded the matter to the trial Court for fresh consideration. Hence, the appeal is liable to be dismissed. 11. There is a delay of 609 days in filing the appeal. Upon considering the deposition in affidavit filed along with application in IA.No.1/2024, there are no cogent reasons explained regarding delay and also there is no merit found in the appeal, hence, the appeal is dismissed on both reasons on delay and on merits on the ground urged in the appeal. 12. Accordingly, I proceed to pass the following: ORDER This Miscellaneous Second Appeal is dismissed. In view of dismissal of the appeal, IA.No.2/2024 does not survive for consideration and the same is dismissed.