(1) CSA -303/08 - K.U.M.S. & Ors. Vs. Dev Kishan, (2) CSA-304/2008- K.U.M.S. & Ors. Vs. Madan Lal Judgment dt.18.11.2008 1/2 S.B. CIVIL SECOND APPEAL NO.303/2008 Krishi Upaj Mandi Samiti, Bikaner & Ors. Vs. Dev Kishan S.B. CIVIL SECOND APPEAL NO.304/2008 Krishi Upaj Mandi Samiti, Bikaner & Ors. Vs. Madan Lal Date of order : 18th November, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. R.K. Mehta for the appellant. --------- 1. Heard learned counsel. 2. These second appeals are directed against the concurrent findings of two courts below whereby the two courts below have found that the plaintiff was entitled to allotment of shop in Krishi Upaj Mandi, Bikaner on the basis of auction held in 1989. 3. Learned counsel for the appellant Krishi Upaj Mandi Samiti submits that the plaintiff had earlier also filed a suit which was dismissed on the ground of not serving advance notice to the Krishi Mandi in accordance with the provisions of the Act and, therefore, the second suit was not maintainable, 4. However, it does not appear either from the impugned orders or from the pleadings of the appellant that he has raised this point specifically before the learned trial court nor any issue has been framed with regard to the res judicata by the learned trial court. (1) CSA -303/08 - K.U.M.S. & Ors. Vs. Dev Kishan, (2) CSA-304/2008- K.U.M.S. & Ors. Vs. Madan Lal Judgment dt.18.11.2008 2/2 5. The learned counsel for the appellant submits that the same being a question of law can be raised at the stage of second appeal. 6. The said contention of the learned counsel for the appellant does not impress this Court. The question of res judicata is essentially a mixed question of fact and law depending upon the pleadings of the parties and issues raised before the courts below. In absence of any specific pleading, no issue was framed about res judicata, therefore, the said question cannot be permitted to be raised at this stage. Otherwise this Court finds that the courts below have addressed the relevant evidence and there is neither misreading of evidence by the Courts below nor the findings arrived at by the courts below can be said to be perverse in any manner. 7. These second appeals are found to be devoid of merit. The same are accordingly dismissed. Copy of this order be sent to the respondent. [ DR. VINEET KOTHARI ], J. item No.7 & 8 babulal/-