IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16492 of 2011 Gopi Kant Jha Versus Murlidhar Mishra ---------------------------------- 6. 21.11.2011 Heard the learned counsel for the defendant petitioner. The petitioner has filed this application under Article 227 of the Constitution of India against the order dated 5.9.2007 passed by Munsif, Fast Tract Court, Munger in Eviction Suit No. 15 of 2001 whereby the learned court below refused to decide the issue No.1 and 1-A as preliminary issue which relates to non- maintainability of this Eviction Suit by the plaintiff. The learned counsel for the petitioner submitted that earlier the father of the plaintiff namely Gorelal Mishra filed Title Suit No. 82 of 1971 for declaration of title and for declaration that Bihar Religious Trust Board has no concern with the suit property. That suit was dismissed which was confirmed up to the second appeal. Thereafter the said Gorelal Mishra filed another Title Suit being Title Suit No. 31 of 1989 and during the pendency of the said suit Gorelal Mishra died and the present plaintiff filed the application for being substituted in place of his father which was allowed by the trial court but it was set aside in civil revision by the High Court. In view of the above facts and circumstances 2 of the case, according to the learned counsel the said orders shall operate as res judicata because neither the father of the plaintiff nor the plaintiff is either Pujari or Siwayat of deity Smt. Rajrajeshwari Bhagwati Devi. From perusal of the impugned order it appears that the learned court below considering all these facts and circumstances of the case came to the conclusion that the issue which was involved in the earlier suit is not involved in the present suit and, therefore, rejected the application filed by the petitioner. Admittedly, the issue involved in the earlier suit regarding Siwayatship or Pujariship is concerned, it is not at all involved in the present suit, the suit has been filed by the plaintiff under the Bihar Building (Lease, Rent Eviction & Control) Act, 1982 for eviction of the defendant on the ground of default. In the plaint the plaintiff respondent has specifically stated at paragraph 6 that the plaintiff constructed the said rooms and inducted the present petitioner in the month of January 2001 on a rent of Rs.300/- per month therefore, the only question to be decided in the present suit as to whether there exists relationship of landlord and tenant between the parties or not therefore, this question which is involved to be decided in the present suit has got nothing to do with the earlier suit. Further so far res judicata is concerned, it is a 3 mixed question of law and fact and moreover it is rule of evidence and not bar created under any law to a suit. In view of the above facts and circumstances of the case, I find no reason to interfere with the impugned order. Accordingly, this writ application is dismissed. S.S. (Mungeshwar Sahoo, J.)