IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.571 of 2008 1. Krishna Kumar Tibrewal, son of Sri Hanuman Prasad Tibrewal, 2. Smt. Usha Devi @ Usha Tibrewal, wife of Krishna Kumar Tibrewal, Both residents of village- Behat Station Bazar, Jhanjharpur, P.O. & P.S.- R.S. Sivir Jhanjharpur, District- Madhubani (Bihar). ……Defendant 1st set. 3. Upendra Jha @ Upendra Narayan Jha, son of Late Chhotkan Jha, 4. Govind Jha, son of late Chhotkan Jha, 5. Narayan Jha, son of Late Chhotkan Jha, ……..Defendants 2nd set. 6. Amod Kumar Jha, son of Shri Upendra Jha, …..Defendant 4th set. No.3 to 6 residents of village- Behat, Tole Navtol, P.O. & P.S.- R.S. Sivir Jhanjharpur, District- Madhubani (Bihar). …………. Petitioners. Versus 1. Shiv Narayan Prasad @Shiv Shankar Prasad, son of late Mahadeo Lal, resident of village- Behat Station Bazar, Jhanajharpur, P.O. & P.S.- R.S. Sivir, Jhanjharpur, District- Madhubani. ….Plaintiff/opposite party 1st set. 2. Jahid Ali, son of Janab Abdul Mazid, At & P.S. - Bachhvara, Kadaribad, Bahapar, District- Begusarai, present address- Village- Behat, Station Bazar Jhanjharpur, P.O. & P.S.- R.S. Sivir Jhanjharpur, District- Madhubani (Bihar). 3. Nasim Akhtar, son of Md. Sayeed, At & P.S. Bachhvara, Kadaribad, Bahapar, District- Begusarai, present address- Village- Behat, Station Bazar Jhanjharpur, P.O. & P.S.- R.S. Sivir Jhanjharpur, District- Madhubani (Bihar). 4. Arrizad Ali, son of Ajmat Hussain, At & P.S. Bachhvara, Kadaribad, Bahapar, District- Begusarai, present address- Village- Behat, Station Bazar, Jhanjharpur, P.O. & P.S.- R.S. Sivir Jhanjharpur, District- Madhubani (Bihar). 5. Humaira Khatun, wife of Md. Sayeed, At & P.S. - Bachhvara, Kadaribad, Bahapar, District- Begusarai, present address- Village- Behat, Station Bazar Jhanjharpur, P.O. & P.S.- R.S. Sivir Jhanjharpur, District- Madhubani (Bihar). 6. Tabbasum Khatun, daughter of Md. Sayeed, At & P.S.- Bachhvara, Kadaribad, Bahapar, District- Begusarai, present address- village- Behat, Station Bazar Jhanjharpur, P.O. & P.S.- R.S. Sivir Jhanjharpur, District- Madhubani (Bihar). 7. Mumtaj Khatun, daughter of Md. Sayeed, At & P.S. Bachhvara, Kadaribad, Bahapar, District- Begusarai, present address- Behat, Station Bazar Jhanjharpur, P.O. & P.S. - R.S. Sivir Jhanjharpur, District- Madhubani (Bihar). 8. Entiyaj Khatun, daughter of Md. Sayeed, At & P.S. Bachhvara, Kadaribad, Bahapar, District- Begusarai, present address- village -Behat, Station Bazar Jhanjharpur, P.O. & P.S.- R.S. Sivir Jhanjharpur, District- Madhubani (Bihar). …Defendants 3rd set/opposite party 2nd set. 2 9. Shri Satya Narayan Prasad, son of Late Mahadeo Lal, village - Behat, Station Bazar Jhanjharpur, P.O. & P.S.- R.S. Sivir Jhanjharpur, District- Madhubani (Bihar). ….Defendant 5th set/opposite party 3rd set. 10. Shri Ajay Kumar Tibrewal, son of Shri Satya Narayan Prasad, village- Behat, Station Bazar Jhanjharpur, P.O. & P.S.- R.S. Sivir Jhanjharpur, District- Madhubani (Bihar). 11. Shri Vineet Kumar Tibrewal, son of Shri Satya Narayan Prasad, village- Behat, Station Bazar Jhanjharpur, P.O. & P.S.- R.S. Sivir Jhanjharpur, District- Madhubani (Bihar). 12. Smt. Meera Devi, wife of Shri Satya Narayan Prasad, village- Behat, Station Bazar Jhanjharpur, P.O. & P.S.- R.S. Sivir Jhanjharpur, District- Madhubani (Bihar). 13. Smt. Namita Sikaria, wife of Shri Prakash Sikaria, C/o N.P. Distributors, Old Exchange Road, At & P.O. & P.S.- Raxaul, District- East Champaran (Bihar). 14. Smt. Babita Tekriwal, wife of Shri Niraj Tekriwal, C/o Manohar Lal Dwarka Prasad, At & P.O. & P.S.- Singheshwar Sthan, District- Madhepura (Bihar). 15. Smt. Rekha Sonthalia, wife of Shri Ramesh Chandra Sonthalia, C/o R.Kay Distributors, Main Road, At & P.O. & P.S.- Jaynagar, District- Madhubani (Bihar). 16. Ritu Kumari, daughter of Shri Satya Narayan Prasad, village- Behat, Station Bazar Jhanjharpur, P.O. & P.S.- R.S. Sivir Jhanjharpur, District- Madhubani (Bihar). ….Defendant 6th set/opposite party 4th set. 17. Smt. Kesari Devi, wife of Late Kesori Lal Hisaria, C/o Pramod Kumar Suresh Kumar, Main Road, At & P.O. & P.S.- Sitamarhi, District- Sitamarhi (Bihar). 18. Smt. Chandrakala Devi, wife of Late Bajrang Lal Choudhary, C/o Kaveri Silk Mills (P) Ltd. T-31118-19, Surat Textile Market, Ring Road, At & P.O. Surat, District-Surat (Gujrat). 19. Smt. Gita Devi, wife of Late Bihari Lal Banka, C/o Vishnu Trading Company, At & P.O. - Muzaffarpur, District- Muzaffarpur (Bihar). 20. Smt. Sita Devi, wife of late Om Prakash Makharia, C/o J.U. Pesticides & Chemicals (P) Ltd., REM Organics, 611-B, Silver Line, Sayagiganj, Varodadra (Gujrat). 21. Smt. Puspa Devi, wife of Shri Ramavatar Dokania, Station Road, Bada Chowk, At & P.O. & P.S.- Giridih, District- Giridih (Jharkhand). 22. Sri Binod Kumar Sultania, son of late Ram Jee Lal Sultania, C/o Sultania Agency, At & P.O. & P.S. Ghoghardiha, District- Madhubani (Bihar). 23. Sri Ganesh Kumar Sultania, son of late Ram Jee Lal Sultania, C/o Sultania Agency, At & P.O. & P.S. Ghoghardiha, District- Madhubani (Bihar). 24. Sri Dilip Kumar Sultania, son of late Ram Jee Lal Sultania, C/o Sultania Agency, At & P.O. & P.S. Ghoghardiha, District- Madhubani (Bihar). 3 25. Sri Manoj Kumar Sultania, son of late Ram Jee Lal Sultania, C/o Sultania Agency, At & P.O. & P.S. Ghoghardiha, District- Madhubani (Bihar). 26. Smt. Bina Devi, wife of Shri Chandrabhan Gutgutia, C/o Me- I N –Block Market, Greater Kailash-I, New Delhi-110048. 27. Smt. Kanta Devi, wife of Shri Vijay Kumar Tekriwal, C/o Manohar Lal Dwarka Prasad, At & P.O. & P.S.- Singheshwar Sthan, District- Madhepura (Bihar). 28. Smt. Madhu Devi, wife of Shri Narayan Bajaj, C/o Rudhmal Jhabarmal, At & P.O. & P.S.- Khagaria, District- Khagaria (Bihar). 29. Sri Ram Gopal Jain, son of late Chiranjeev Lal Jhain, 402/403 Mangalpur Society, Veer Arjun Marg, Sagar Complex, Anand Mahal Road, Adjan, Surat (Gujrat). 30. Sri Kasi Jain, son of late Chiranjeev Lal Jain, C/o Ganesh Stores, Swami Viveka Nand Path, Yogsar, Budhanath, At & P.O. & P.S.- Bhagalpur, District- Bhagalpur (Bihar). 31. Puspa Jain, wife of late Vijay Kumar Jain, At & P.O. & P.S.- Kharik Bazar, Bhagalpur, District- Bhagalpur (Bihar. 32. Mr. Saurav Jain, son of late Vijay Kumar Jain, At & P.O. & P.S. - Kharik Bazar, Bhagalpur, District- Bhagalpur (Bihar). 33. Mr. Pravin Jain, son of late Vijay Kumar Jain, At & P.O. & P.S. Kharik Bazar, Bhagalpur, District- Bhagalpur (Bihar). ...Defendants 7th set/opposite party 5th set. 34. Shree Bagwan Jha, son of late Bhavdeo Jha, resident of Mouza- Behat, Tole- Navtol, P.S.- R.S. Shivir Jharnjharpur, District- Madhubani. 35. Shree Umesh Jha, son of Late Bhavdeo Jha, resident of Mouza- Behat, Tole- Navtol, P.S._ R.S. Shivir, Jhanjharpur, District- Madhubani. …..Defendants 8th set/opposite party 6th set. ----------- 04- 20.10.2011 Heard Mr. Mahesh Narayan Parbat for the petitioners (the defendants), and Mr. Prabhash Ranjan for opposite party no.1 (plaintiff 1st set). This civil revision application is directed against the order dated 23.1.2008, passed by the learned Subordinate Judge 3rd court, Jhanjharpur, in Title Suit No. 27 of 2006, whereby the application filed by the present petitioners under section 11 of the Code of Civil Procedure has been rejected. 4 2. We have perused the materials on record and considered the submissions of the learned counsel for the parties. Partition Suit No.268 of 1972/305 of 1973 was instituted on 29.6.1972. The same was between the mother, the father, and the two brothers one of whom is the plaintiff in the instant suit. The partition suit was decreed in terms of a joint compromise petition by judgment and decreed dated 19.4.1975, and the four co-sharers had received 1/4th share each. The mother died in 1979, and the father died on 6.10.1991. The present petitioners purchased a plot of land from the other brother, a defendant in the instant suit, by a registered deed of absolute sale. Thereafter opposite party no.1 herein instituted the instant suit for partition of the properties allotted to the father and the mother and also for setting aside the sale deed in favour of the present petitioners. According to the present plaintiff (opposite party no.1 herein), his brother had alienated properties belonging to the father and/or the mother also in favour of the present petitioner. The present petitioners filed an application under section 11 of the Code of Civil Procedure before the learned trial court that the issues are concluded by the compromise decree in the partition suit and, therefore, this issue may be 5 decided as a preliminary issue. The learned trial court has not acceded to the prayer. Hence this civil revision application at the instance of the purchasers. 3. It appears to us that the cause of action for the earlier partition suit is different from that of the present title suit. A question may still survive for consideration whether or not the other brother could have alienated part of the properties allotted to the father and/or the mother in the compromise decree, in favour of the present petitioners. Secondly, the question of Res-Judicata is normally a mixed question of law and facts. In such a situation, the learned trial court has ordered that the objection raised by the present petitioners as a preliminary objection shall be considered at the time of the disposal of the suit. We agree with the approach adopted by the learned trial court. It goes without saying that the learned trial court shall ensure that the preliminary objection(s) raised by the present petitioners are incorporated in the issues to be framed by him. 4. This civil revision application is dismissed. We wish to record the requisite note of caution that the observations, if any, made in the present order is only for the purpose of disposal of the present civil revision application, 6 which are not based on any substantive evidence, and shall be completely ignored by the learned trial court while disposing of the suit. (S K Katriar, J.) S.K.Pathak/