DINESH KUMAR Vs. GOPAL S/O. BHARTHU

JUDGEMENT

(1.) The substantial question of law involved, formulated and to be answered in this second appeal preferred by the appellants/plaintiffs is as under:-

(2.) Two plaintiffs filed a suit for declaration of title and permanent injunction stating inter-alia that defendant No.9-Lakhan is not legal heir of Sudhan @ Ronha and he has no right and title over the suit property, as such, he be restrained from interfering with right and title over the suit property mentioned in Schedule "A" appended with the plaint. During pendency of the suit, defendant No.9 filed an application under Order 7 Rule 11 of the CPC stating inter-alia that the suit is barred by principle of res-judicata as earlier the plaintiffs father filed a suit bearing Civil Suit No.72A/90 against defendant No.9. The trial Court granted that application and dismissed the suit holding the suit to be barred by principle of res-judicata, against which, the plaintiffs preferred first appeal. The first appellate Court while affirming the judgment and decree of the trial Court dismissed the appeal. Questioning the judgment and decree of the first appellate Court, this second appeal under Sec. 100 of the CPC has been filed by the appellants/plaintiffs, in which one substantial question of law has been formulated, which have been set-out in the opening paragraph of this judgment for sake of completeness.

(3.) Mr.Anurag Singh, learned counsel for the appellants/plaintiffs, would submit that both the Courts below are absolutely unjustified in dismissing the suit holding it to be barred by principle of resjudicata overlooking the fact that plea of resjudicata is mixed question of law and fact which can be adjudicated only after framing the issue, as such, the judgment and decree of both the Courts below deserve to be set-aside.