THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY C.M.A.No.709 of 2011 JUDGMENT: Respondent No.2 filed O.A.No.82 of 2006 before the Deputy Commissioner of Endowments, Guntur against the appellant with a prayer to declare her as encroacher and for eviction from the schedule property. In that O.A., the appellant filed I.A.No.101 of 2006 with a prayer to decide the maintainability of the O.A. The reason pleaded by the appellant was that in respect of the very property, respondent No.2 filed O.A.No.5 of 1977 before respondent No.1 on an earlier occasion against three persons, by name Smt.B.Tirupathamma, Sri B.Suryanarayana and Sri B.Sambaiah and that though an order of eviction was passed on 28.02.1981 by respondent No.1, the same was set aside by the Court of the Additional Senior Civil Judge, Guntur in O.S.No.310 of 1991 through judgment, dated 04.12.1984. Obviously by raising the plea of res judicata, the appellant wanted respondent No.1 to decide the question of maintainability. The application was opposed by respondent No.2. Through order, dated 07.08.2007, respondent No.1 dismissed the I.A. Hence, this appeal Sri K.Nageswara Reddy, learned counsel for the appellant, submits that his client is a purchaser from the persons, who were respondents in O.A.No.5 of 1977 and that the order of eviction passed against them was set aside by the civil Court through judgment, dated 04.12.1984. He further submits that it was not competent for respondent No.1 to entertain the O.A. once again on the same facts against the purchaser from the original parties. Though respondent No.2 is served with notice, it has not chosen to enter appearance. The appellant intended to raise the plea of res judicata in the proceedings initiated against her. Basically, the plea of res judicata is a defence available to a respondent/defendant. Even if a Court or Tribunal or Authority finds that the claim made before it is barred by res judicata, it does not impinge upon the maintainability of the proceedings as such. The question of maintainability can be raised only when the Authority or Tribunal lacks jurisdiction. The appellant does not contend that respondent No.1 lacked the jurisdiction to entertain the O.A. Res judicata is a mixed question of fact and law. It can be raised in a written statement/counter and it must be substantiated in the course of trial. While the documentary evidence must comprise of the order of judgment that constitutes the res judicata, oral evidence must be adduced to establish that the parties to both the proceedings and the issues involved therein are common. Such questions cannot be decided as preliminary issues. Respondent No.1 has taken the correct view of the matter. The O.A. has to be decided on merits. Consequent upon the establishment of the Endowments Tribunal, the O.A. is now pending on its file. Hence, the appeal is disposed of, upholding the order under appeal, but leaving it open to the appellant to raise all the grounds before the Endowments Tribunal. The plea of resjudicata raised by the appellant shall be decided on its own merits as one of the issues. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY,J Dt:07.07.2011 kdl