CR No.7410/2011 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CR No.7410/2011 Date of decision: 16.12.2011. Naresh ....................Petitioner v. Rajesh and others .....................Respondents Coram: Hon'ble Mr.Justice Jaswant Singh Present: Mr.Arun Singla,Advocate for the petitioner. Jaswant Singh.J.(Oral) Petitioner/defendant no.5 has filed the instant revision petition under Article 227 of the Constitution assailing the order dated 17.11.2011 (P6) passed by learned Civil Judge(Junior Division) Panipat, whereby the application moved by the petitioner/defendant no.5 for framing the issue regarding res-judicata as preliminary issue was partly allowed. It is submitted that respondents 1 to 8 filed a suit for declaration to the effect that plaintiffs and defendants 1 to 4 are owners of the agricultural land measuring 15 kanals 19 marlas situated in the area of Village Kurana and also of 1/3rd share out of 4K17M situated in Village Kurana,Tehsil Israna, Distt.Panipat and the release deed dated CR No.7410/2011 2 24.4.2003 by defendant no.5 as also mutation no.5885 are illegal,void and result of fraud and misrepresentation and that similarly mutation no.4335 of inheritance in favour of Smt.Sunder Devi is also illegal and void. It was alleged by respondents 1 to 8 that mutation in the name of defendant no.5 Sunder Devi has been wrongly entered as legal heir of Chhotto and that she had no concern with Chhotto. It was further alleged that said Chhotto had executed a Will dated 20.11.1971 in favour of Musadi and Chhoto. Upon notice, petitioner alongwith Smt.Sunder Devi contested the suit and filed reply stating therein that the suit was barred by res- judicata as earlier Sh.Musadi, predecessor-in-interest of defendant nos. 1 to 4 had filed a similar suit for the same relief against Smt.Sunder Devi and in the said suit predecessor-in-interest of plaintiff was impleaded as defendant. The said suit bearing No.131 of 1974 was dismissed on 30.12.1976 and the appeal was also dismissed on 2.6.1978. Since the issue regarding res-judicata, as projected by the petitioner and Smt. Sunder Devi was not framed, petitioner moved an application to frame an issue in this regard and treat it as preliminary issue. The said application moved by the petitioner came to be decided by the learned trial court vide impugned order dated 17.11.2011 (P6). Hence the present revision petition. It is submitted by the learned counsel for the petitioner that the learned trial court has erred in not treating the issue of res-judicata CR No.7410/2011 3 as a preliminary issue. After hearing the learned counsel, I find no illegality or infirmity in the impugned order. The learned trial court while partly allowing the application moved by the petitioner has found that to decide the question of res- judicata evidence of both the parties is necessary as question of res- judicata is a mixed question of facts and law. It has further been noticed that as on date there is no evidence adduced by either party and as such question of res-judicata could not be decided by framing preliminary issue without perusal of the facts adduced by both the parties. I am in agreement with the view taken by the learned trial court. For the reasons stated above, finding no merit in this revision petition the same is hereby dismissed. 16.12.2011 (Jaswant Singh) joshi Judge