ORDER : 1. Heard Sri Srinivasa C, learned counsel for the revision petitioner, Sri G.A.Shreenivasa for Sri C.Lokesh, learned counsel for respondent Nos. 1 to 3, Sri Pavan G.N. for Sri G.Nagarajulu Naidu, learned counsel for respondent No.4. 2. Defendant No.3 is the revision petitioner challenging the validity of the dismissal of the application filed under Order VII Rule 11 of the Code of Civil Procedure by impugned order passed in O.S No.8320/2018 on the file of XII Additional City Civil Judge, Bengaluru. 3. Facts in the nutshell which are utmost necessary for disposal of the present Civil Revision Petition are as under: A suit in O.S No.8320/2018 came to be filed seeking the following relief in respect of the following movable and immovable properties. “WHEREFORE, the Plaintiff prays that this Hon'ble Court be pleased to pass judgment and Decree for; (a) Partition of 1/3rd Share in the Suit Schedule A Property Item No.1 and 2 by meets and bounds and 1/3rd Share in the Suit Schedule B property Item No. 1 and 2. (b) Partition of I/18th share to the Plaintiff in the Suit Schedule A Property Item No. 3 by meets and bounds. (c) Declare that the Sale Deed: dated 11/03/2015, Registered as Document No. TMK-1-22369-2014-15 IN CD NO. TMKD598 is not binding on the plaintiff share. (d) Declare that the Sale Deed dated 22/07/1994 bearing Registration No: 2432, Book I, Volume 3312, pages 211 to 224 and Sale Deed dated 22/07/1994 bearing Registration No. 2434, Book I, Volume 3318, pages 184 to 194 is not binding on the plaintiff share. (e) Mesne Profits of 1/3rd Share in the Suit Schedule A Property Item No. 1 and 2 and 1/18th share to the Plaintiff in the Suit Schedule A Property Item No. 3. (f) Separate possession of the share. (g) Cost of the Proceedings. (h) Pass such other relief/reliefs as this Hon'ble Court deems fit in the circumstance of the case, in the interest of justice and equity. (f) Separate possession of the share. (g) Cost of the Proceedings. (h) Pass such other relief/reliefs as this Hon'ble Court deems fit in the circumstance of the case, in the interest of justice and equity. DESCRIPTION OF SUIT PROPERTEIS: Schedule A Property Immovable Property 1) All that piece and parcel of No.146, New No.3505, B-41 measuring 40 X 60 situated at 4 th T Block, 13 th Main, 35 th Cross, Jayanagara, Bengaluru, bearing PID No. 58-3-3, 13 th ‘A’ Main, 4 th ‘T’ Block, Jayanagara, Bengaluru having residential Property of 3 (Three) Floors and bounded: North: Site No: 135, Property of D. Bhoopal South: Site No. 147, Property of D.H. Ram Rao East: Property of M.B. Venkataramaiah West: 13 th main road. 2. All that piece and parcel of immovable property bearing Katha No. 981/1122/D, re-number 1122/D/888, PID 2183,measuring North to South 35 feet and East to West 46 feet situated at S.S. Puram Layout Ward No.22, with in the Tumakuru Corporation limits, Tumakuru. North: Property of D.B. Jayadeva South: Property of Susheelamma and S.P. Rajashekar East: Conservancy West: Property of S.R. Umesh Chandran and common passage. 3. All that piece and parcel of immovable property bearing: (a) bearing ML Katha No.2239/2958, 984/A, re-number Katha No. 1125/A/896, measuring 28 X 78 with PID No. 2279. (b) bearing ML Katha No.9548, re-number Katha No.4629/912, measuring 135 X 78 with PID No. 2279 both (a) and (b) measures 163 × 78 = 12,714 sq.ft situated at Dr. Radhakrishnan Road, Someshwara Layout, Ward No. 22, with in the Tumakur Corporation limits, Tumakur and bounded on. North: Aruna Hospital Property South: Property of Sri. Mahesh East: Conservancy West: Dr. Radha Krishna Road, S.S. Puram Schedule B Property Movables Item No. 1: Rs.50,000/- in the name Parvathamma by making her as Nominee at Vijayanagara Post office Bengaluru. Item No. 2: Gold Items (1) Dabu-100 gm., (2) Watch Chain-15 gm, (3) Karimani 2 in numbers 30 gm each, (4) Bangle 3 fair each 30 gm, (5) Ear rings 1 fair each 8 gm, (6) Karimani Chain Black 30 gms, (7) Avalakki Chain single 30 gms, (8) Karadige 1 in number 30 gms, (9) Finger rings 2 numbers each 8 grams, (10) white pearl chain 30 grms, (11) Stone Bangles red 1 pair each 25 grms. Silver Item (1) Chambu Astalakshmi 500 grams, (2) Chambu (Plain) 500 grams, (3) Deepad Kambha 3 fairs each 750, grams, (4) Flower Battalu 2 in numbers each 350 grams (5) silver thatte 6 numbers each 500 grms and (6) silver cup 6 numbers each 50 grms. 4. Plaint got amended after the written statement came to be filed. 5. According to the plaintiffs, they are also having share in the suit properties and without granting the share in the suit properties, there was a compromise between the male members of the family which was subject matter of suit in O.S No.142/1997. 6. Having learnt about the misdeeds committed by the defendants and refusing to grant share to the plaintiffs, suit in O.S No.8320/2018 came to be filed by the plaintiffs. 7. The third defendant is the purchaser of one of the sites left behind by Sri S.R.Mallikarjun based on the Will said to have executed by said S.R.Mallikarjuna in favour of the first defendant. 8. According to the plaintiffs, the said Will did not include the ‘B’ schedule property and it was only restricted to ‘A’ schedule property. Further, alleged Will is disputed and it is to be proved during the trial. 9. The third defendant, pursuant to the suit summons, entered appearance, filed written statement and also filed an application under Order VII Rule 11 of the Code of Civil Procedure to reject the plaint, as there is no cause of action to file the suit, in view of the settlement that has taken place in O.S.No.142/1997 and based on the Will executed by S.R.Mallikarjun in favour of the first defendant. 10. Plaintiffs opposed the said application by filing detailed written objection statement. 11. Learned Trial Judge after considering the rival contentions of the parties, dismissed the application by the impugned order. 12. Validity of the said Order is called in question in this revision petition on the following grounds: ? “It is submitted that, the plaintiff has filed a suit for partition and separate possession and also sought a declaratory relief seeking to declare the sale deeds dtd.11.03.2015 & 22.07.1994 are not binding on Plaintiff's share. ? It is pertinent to mention here that, the Plaintiff herself as pleaded in the plaint that her father died on 08.11.1996 and her mother died 03.04.2005. ? It is pertinent to mention here that, the Plaintiff herself as pleaded in the plaint that her father died on 08.11.1996 and her mother died 03.04.2005. when such is the fact, the suit is instituted by the plaintiff after 28 years, upon the demise of Plaintiff's father, by suppressing various material facts by clever draft of plaint and pleading an illusory cause of action to suit her case and the suit itself is barred by limitation. Hence, the plaintiff has no right to claim any relief as pleaded in the plaint and much less there is no cause of action for the suit in OS. No.8320/2018. Hence, on this score alone the Trial Court ought to have been rejected the plaint and the impugned order is opposed to law, which is liable to be set aside. ? It is submitted that, on careful reading of the plaint discloses that, the suit schedule 'A' properties have been alienated prior to 20 th December 2004, which are saved as per the proviso Sec.6 of Hindu Succession Act, 1956. The said aspect has not been considered by the trail court while adjudicating IA-13, seeking rejection of the plaint on the ground that suit is barred by any law. Hence, the impugned order is liable to be set-aside. 11. It is submitted that, the trial court has ignored to consider the Regd. Will dtd.04.09.1996 in which the 1st Defendant has got exclusive ownership w.r.to item No.1 of suit schedule 'A' property & all other ancestral properties of Father of Plaintiffs and 1st and 2nd Defendant. Further, by virtue of the right accrued in favour of 1 st Defendant the 1 st Defendant and his mother got allotted item No.2 of suit schedule 'A' property under a Compromise Decree dtd.28.08.1997 passed in O.S.No.142/1997 by the Addl. Senior Civil Judge at Tumakuru. Hence, the suit properties are to be considered as alienated prior to 20 December 2004, as per the proviso of Sec.6 of Hindu Succession Act, 1956. In view of the execution of Red. Will dtd.04.09.1996 by the father of 1st Defendant bequeathing item No.1 of suit schedule 'A' property and other ancestral property in favour of 15 th Defendant, the contents of the will are saved under Sec. 91 & 92 of Evidence act. Thus, the trial court, committed gross error in passing the impugned order, which is liable to be set aside. Will dtd.04.09.1996 by the father of 1st Defendant bequeathing item No.1 of suit schedule 'A' property and other ancestral property in favour of 15 th Defendant, the contents of the will are saved under Sec. 91 & 92 of Evidence act. Thus, the trial court, committed gross error in passing the impugned order, which is liable to be set aside. The copy of the Regd. Will dated 04.09.1996 is produced and herewith marked as Annexure-H. ? It is submitted that, the impugned order is opposed to ratio laid down by the Hon'ble Supreme Court of India in Ramisetty Venkatanna v. Nasyam Jamal Saheb, 2023 SCC Online SC 521. ? It is submitted that, the petitioner may be permitted to urge any other ground in support this revision, during the course of arguments.” 13. Sri Srinivasa C., learned counsel for the revision petitioner/third defendant, reiterating the grounds urged in the revision petition contended that the suit is per se not maintainable both on factual aspects and on question of limitation, inasmuch as, the property earlier belonged to S.R.Mallikarjun and he has executed a Will in favour of the first defendant during his lifetime. Therefore, plaintiffs cannot lay claim on the suit properties. Further, in view of the earlier settlement in respect of the suit properties which was subject matter of O.S No.142/1997, second suit by the daughters of S.R.Malikarjun is per se not maintainable. 14. He would further contend that learned Trial Judge did not properly appreciate the scope and ambit of Order VII Rule 11 of the Code of Civil Procedure while dismissing the application resulting in miscarriage of justice and sought for allowing the revision of petition. 15. Per contra, learned counsel for the respondents supports the impugned Order. 16. Having heard the arguments of both sides, this Court perused the material on record meticulously. 17. On such perusal of the material on record, it is to be noted that while considering the request for rejection of the plaint, what is to be considered is the plaint averments alone and not the written statement contentions. 18. In the plaint, cause of action paragraph reads as under: 16. 17. On such perusal of the material on record, it is to be noted that while considering the request for rejection of the plaint, what is to be considered is the plaint averments alone and not the written statement contentions. 18. In the plaint, cause of action paragraph reads as under: 16. Cause of action: Suit for partition, the plaintiff demanded for the partition on 28.06.2018 by way of legal notice and the defendant Nos.1 and 2 have issued reply dated 01.08.2018 and thereby the defendant No.1 and 2 have refused to effect partition, hence the cause of action for the suit arose on 28.06.2018 and subsequently on 01.08.2018 the date on which the reply was issued. 19. On close reading of the entire plaint averments which got amended during pendency of the suit and the cause of action paragraph, all that the plaintiffs are is seeking is, their legitimate share in respect of the suit properties on following counts. 20. Firstly, plaintiffs are disputing the Will said to have been executed by Sri S.R.Mallikarjun in favour of the first defendant. 21. Secondly, even if the Will is to be accepted for the sake of arguments alone, the bequeath therein is only with regard to ‘A’ schedule property and therefore, plaint cannot be rejected in part. 22. Further, question of limitation in the case on hand is admittedly mixed question of law and facts, in view of the specific contention taken by the plaintiffs and discussed supra. 23. Thirdly, the compromise that is pitted against the plaintiffs by the defendant and in the application filed under Order VII Rule 11 of the Code of Civil Procedure, the plaintiffs were not parties to the said suit and therefore, the decision rendered therein would not bind the plaintiffs. 24. Further, whether at all the plaintiffs had a right in respect of the suit properties, whether S.R. Malikarjun had parted away all his rights by way of the Will, are all matters which are to be decided by the learned Trial Judge after allowing the parties to place their respective material evidence on record. 25. Hence, dismissal of the application without holding the mini trial as to the rival contentions of the parties is just and proper which requires no interference in this revision. 26. Therefore, the following: ORDER: (i) Civil Revision Petition is dismissed. 25. Hence, dismissal of the application without holding the mini trial as to the rival contentions of the parties is just and proper which requires no interference in this revision. 26. Therefore, the following: ORDER: (i) Civil Revision Petition is dismissed. (ii) All contentions are kept open including the defence of the revision petitioner that he is a bonafide purchaser for value to be urged in the pending suit.