IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.380 of 2008 Umeshwar Nath, son of Sri Jagjiwan Nath, resident of village- Shokhara, Police station-Phulwariya Pargana Malki, P.O. Barauni, District-Begusarari ---- Defendant --- Petitioner. Versus 1. Tara Devi W/O late Shiv Charan Chaudhary @ Shiv Charan Pasi 2. Ajay Kumar (minor) 3. Vijay Kumar (minor) both minor sons of late Shiv Charan Pasi and under the guardianship of their mother Smt. Tara Devi. 4. Most Lali Devi widow of late Rajendra Chaudhary and daughter of late Sukkar Pasi @ Sukkar Chaudhary. All are resident of Village- Sokhara, P.O. Barauni, Police Station-Fulwariya, District-Begusarai. – ---- Plaintiffs --- Opposite parties Ist Set. 5. Sri Jagjivan Nath. 6. Sri Deena Nath Lal, both are sons of Ram Lakhan Lal 7. Sri Dhaneshwar Nath, son of Sri Jagjiwan Nath. 8. Sri Jugeshwar Nath, son of Jagjivan Nath 9. Sri Vijay Kumar son of Jagjiwan Nath Opposite party 5 to 9 resident of Village Shokhara P.S. Phulwaria, District- Begusarai 10. Shri Dhananjay Kumar 11. Sri Sanjay Kumar 12. Sri Mritunjay Kumar 13. Sri Anjani Kumar. No.10 to 13 are the sons of Sri Deena Nath Lal and resident of village Shokhara, Police Station- Phulwaria, P.O. Barauni, District-Begusarai 14. Smt. Surjamukhi Devi, w/o Thakur Prasad and daughter of late Ram Lakhan Lal, resident of Village Dahiyama, District Chapra at present residing at Village Shokhara Police Station-Phulwaria, P.O. Barauni, District- Begusarai. 15. Lalmuni Devi, w/o Kamta Prasad and daughter of late Ram Lakhan Lal, resident of Village-Daudpur, District- Chapra at present residing at Village Sokhara, Police Station-Phulwariya, District-Begusarai. ----- Defendant ---- Opposite Parties IInd set 16. Sri Gopal Pasi S/O late Lakhan pasi, resident of village- Spokhara, P.O. Barauni, Police Station-Fulwariya District- Begusarai --- Defendant --- Opposite Party IIIrd set. 2 2. 2.8.2010 Heard Mr. Ashok Kumar for the petitioner, and Mr. Jashawir Singh Arora for opposite party nos.1 to 3. One of the defendants of Title Suit No.38 of 2002 has filed this civil revision application under Section 115 of the Code of Civil Procedure, and challenges the order dated 4.12.2007, passed by the learned Munsif II, Begusarai, in Title Suit No. 38 of 2002, whereby his application to consider the preliminary objection at the initial stage has been rejected. 2. We have perused the materials on record and considered the submissions of learned counsel for the parties. The plaintiffs instituted the aforesaid Title Suit No.38 of 2002 (Tara Devi Vrs. Jagjivan Nath & Ors.), for declaration of right, title, and interest in the suit property, for the declaration that the judgment and decree passed by the learned Additional Munsif I, Begusarai, in Title Suit No.64 of 1978/31 of 1988, is not binding on him, and also to set aside the same. The defendant-petitioner herein filed an application that the plaintiffs of Title Suit No. 38 of 2002 were parties to the said Title Suit No.64 of 1978/ 31 of 1988 and, therefore, the judgment and decree of the same is binding on the present plaintiffs. It was, therefore, prayed that the question of applicability of doctrine of Res-Judicata 3 in the present suit may be decided as a preliminary issue at the initial stage of the suit, which has been rejected by the impugned order. We agree with the approach of the learned trial court that the issue raised by the defendant in the facts and circumstance of the present case is basically a mixed question of law and facts. Therefore, the decision to consider it at the time of final disposal of the matter is the correct approach. We are, therefore, not inclined to interfere with the impugned order. It is made clear that the parties will be entitled to raise the question of Res-Judicata at the stage of hearing of the suit. The learned trial court shall accordingly frame an issue. It is suit of 2002 and, therefore, the learned trial court is directed to dispose it of expeditiously. 3. This civil revision application is dismissed with the aforesaid observations. Vinay/ ( S. K. Katriar,J. )