IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.16 of 2010 1. AMRENDRA BEHARI SARAN S/O LATE BRINDA BEHARY SARAN MOHALLA- MAHADEVA, P.S.- ARA NAGAR, TOWN AND DISTT.- BHOJPUR. ---------Defendant No. 2-------Petitioner Versus 1. SABBIR AHMAD S/O LATE SAFIR AHMAD MOHALLA- MAHADEVA, POST-ARA, P.S.- ARA NAGAR, TOWN AND DISTT.- BHOJPUR. 2. SAMIR AHMAD S/O LATE SAFIR AHMAD MOHALLA- MAHADEVA, POST-ARA, P.S.- ARA NAGAR, TOWN AND DISTT.- BHOJPUR. 3. RASHID AHMAD S/O LATE SAFIR AHMAD MOHALLA- MAHADEVA, POST-ARA, P.S.- ARA NAGAR, TOWN AND DISTT.- BHOJPUR. ----------Plaintiff- Opposite Parties 1st Set. 4. NAGENDRA BIHARI SHARAN S/O LATE BRINDA BEHARY SARAN MOHALLA- MAHADEVA, POST-ARA, P.S.- ARA NAGAR, TOWN AND DISTT.- BHOJPUR 5. SAMRENDRA BIHARI SHARAN S/O LATE BRINDA BEHARY SARAN MOHALLA- MAHADEVA, POST-ARA, P.S.- ARA NAGAR, TOWN AND DISTT.- BHOJPUR -----------Defendant Nos. 1 and 3 Opposite Parties For the petitioner:- Mr. Surendra Kumar Singh, Sr. Adv. Mr. Praveen Prakash, Adv. For the O.P. No. 1 to 3:- Mr. Triloki Nath Maitin, Sr. Adv. Md. Javed Jafar Khan, Adv. -------------- 6. 22.04.2011 Heard Mr. Surendra Kumar Singh, learned Senior counsel appearing on behalf of the petitioner, and Mr. T. N. Maitin, learned Senior counsel, appearing on behalf of Opposite Party Nos. 1 to 3. 2. The present Civil revision application has been filed on behalf of the defendant no.2 -petitioner herein questioning the validity and legality of the order dated 8.12.2009, passed in Title Suit No. 359 of 2009, by learned Ist Sub-Judge, Ara, whereby a petition dated 14.10.2009 filed on his behalf in terms of Order 7 Rule 2 11 (d) and Section 151 of the Code of Civil Procedure (in short C.P.C.) has been rejected. 3. Learned counsel for the petitioner submits that the suit brought by the plaintiffs-opposite party nos. 1 to 3 herein, is not maintainable and plaint was fit to be rejected in terms of Order 7 Rule 11 (d) C.P.C. It is further submitted that the suit of the plaintiffs- opposite parties first set is barred by the Principles of res-judicata, barred by law of limitation and is in complete violation of mandate of Order 23 Rule 3-A C.P.C. According to him, the properties which are subject matter of adjudication in the instant title suit, was subject matter of adjudication in Title Suit No. 72 of 1911, and that was disposed of by a compromise decree dated 22.1.1912. Therefore, according to him, on the face of it, the plaint filed by the plaintiff-opposite party first set is fit to be rejected. 4. Learned counsel for the plaintiffs- opposite party nos. 1 to 3 herein, supported the impugned order passed by learned trial Court. According to him the issues raised by defendant no. 2- petitioner herein requires some sort of evidence and therefore, it cannot be treated to be a pure question of law. It is submitted that learned trial Court was perfectly justified in observing that all issues, including the issues at hand, shall be decided together under the mandate of Order 14 Rule 2 3 (1) C.P.C. He has further submitted that even in the plaint the prayer has not been made on behalf of the plaintiffs for setting aside the compromise decree, but only prayer has been made for a declaration that compromise decree dated 22.1.1912, shall not bind the plaintiffs. Therefore, his submission is that there is no application of provision of Order 23 Rule 3-A C.P.C. 5. After hearing the parties at length and on consideration of materials available on record, this Court is of the considered opinion that question of res-judicata as also question of limitation raised in the instant title suit are based on mixed question of law and mixed question of fact. The issue regarding application of Order 23 Rule 3-A C.P.C. in the instant title suit also requires some evidence for coming to a just conclusion regarding dispute involving the parties. In the given facts of the case, Prima facie, these issues are required to be decided at the first instance. If the suit of the plaintiffs fails on these issues, then there is no necessity of deciding other issues, involved in the suit. However, if the suit is held to be maintainable even after deciding these three issues, then other issues are required to be decided by learned trial Court in accordance with law for coming to a just conclusion regarding disputes involving the parties. Therefore, the impugned order dated 8.12.2009 passed 4 by learned Sub- Judge 1st Ara directing therein that all the issues including these three issues, referred to above, would be tried together, cannot be sustained in its present form and that requires some modification. The issue raised on behalf of defendant no. 2-petitioner herein should be decided as preliminary issue in terms of Order 14 Rule 2 (2) C.P.C. 6. For the reasons indicated above, the impugned order dated 8.12.2009, passed in Title Suit No. 359 of 2009 by learned Trial Court is hereby modified. Learned Court below is hereby directed to take up these three issues, referred to above, as preliminary issues and decide the same at an earliest possible time, after giving opportunity of hearing to both sides. The Court below is hereby directed to take up these issues as preliminary issue and decide the same within three months from the date of receipt/production of a copy of this order. If need be, the present suit be taken up on day to day basis. 7. Learned counsels for the parties assure this Court that they will produce their witnesses and other materials within the time fixed by learned trial Court. The learned Trial Court shall give one month time to the plaintiffs for producing their witnesses/evidence on these preliminary issues. They shall be obliged to produce their evidence/witnesses during aforesaid period of one 5 month. The defendants shall be obliged to produce their witnesses/evidence within one month thereafter and learned trial Court, after hearing the parties, shall dispose of these three issues within a period of three months fixed by this Court. After determination of these three issues, further course of action shall be followed by the learned trial Court, as indicated above. 8. With the aforesaid observations and directions, the present civil revision application stands disposed of. No costs. Anand Kr. ( Birendra Prasad Verma, J.)