1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7718 OF 2009 1 Kesharbai w/o Rambhau Wakchaure, aged about 47 years, Occ: Agril., R/o Mali-Wadgaon, Tq.Gangapur, At present residing at Deolana, Tq.Khultabad, District Aurangabad. 2 Shantabai w/o Jairam Gawali, aged about 62 years, Occ: Agril., R/o Deogaon (Rangari), Tq.Kannad, District Aurangabad. 3 Shobhabai w/o Rajendra Raute, aged about 37 years, Occ: Housewife, R/o Ranjangaon-Shenpunji, Tq.Gangapur, District Aurangabad. 4 Kailas s/o Shankar Dushing, aged about 42 years, Occ: Agri., R/o Mali-Wadgaon, Tq.Gangapur, District Aurangabad. Petitioners Versus 1 Yamunabai w/o Vishwanath Shirsath, aged about 67 years, Occ: Agril., R/o Shirasgaon, Tq.Gangapur, District Aurangabad. 2 Laxman s/o Vishwanath Wakchaure, aged about 62 years, Occ: Agril., R/o Mali-Wadgaon, Tq.Gangapur, District Aurangabad. 3 Kadubai w/o Baburao Surase, aged about 57 years, Occ: Agril., R/o Deolana, Tq. Kannad, District Aurangabad. Respondents 2 Mr.T.Vinod, advocate for petitioners. Mr.S.G.Joshi, advocate for Respondents No.1 & 2. CORAM: R.M.BORDE, J. DATE : 22nd March, 2010. P.C.: 1 Original defendants no.3 to 6 – petitioners herein presented an application to the Court to frame issue in respect of bar of res judicata for entertaining instant suit i.e. R.C.S. No.95/2006 pending before the Court of Civil Judge, Junior Division, Gangapur and to decide the same as preliminary issue before rendering decision on other issues. 2 Original plaintiff – Respondent No.1 herein presented instant suit claiming partition and separate possession against petitioners and Respondents No.2 and 3. 3 It is contended by petitioners that there was earlier suit being R.C.S. No.154/1991 presented by plaintiff – Respondent No.1 herein claiming partition and separate possession. However, after proper contest, said suit has been dismissed. It is, thus, contended that in view of dismissal of earlier suit, instant suit is not maintainable. Plaintiff – Respondent No.1 herein is claiming her entitlement to the ancestral property, she being daughter of Vishwanath Wakchaure, father-in-law of petitioner no.1-original defendant no.3. Entitlement of plaintiff – Respondent No.1 herein could be in respect of share which came to be allotted to father-in-law of petitioner no.1. It is the contention of petitioners herein – original defendants no.3 to 6 that there was already a decree of partition in R.C.S. No.117/86 and separate share has 3 been allotted to petitioner no.1 – original defendant no.3 and share allotted to her cannot be made part of the claim in the instant suit i.e. R.C.S. No. 95/2006. 4 These aspects are required to be dealt with by the trial Court after receiving evidence, that may be led by the parties to the suit. Issue in respect of bar of res judicata is a mixed question of law and facts. In view of provisions of Order XIV Rule 2 of the Code of Civil Procedure, the Court is supposed to pronounce judgment on all the issues except wherein objection is raised in respect of a bar to the suit created by any law for the time being in force. Original defendants are raising objection in respect of bar to the entertainability of the suit on the ground of principle of res judicata. As stated above, in order to arrive at findings on the issues, parties would be required to place on record necessary documents as well as may have to lead evidence if felt necessary. The issue, one being mixed question of law and fact, need not be taken for consideration by postponing decision on other issues. The trial Court will surely frame issue in respect of bar for entertaining suit on the principle of res judicata and would decide same while rendering decision on other issues. The observations made by the trial Court, while passing impugned order, shall not be an impediment in considering the issue raised by petitioners – original defendants no.3 to 6. Petition is devoid of merit. 5 Writ Petition, therefore, stands rejected. (R.M.BORDE) JUDGE ******* adb/wp771809