The judgment and decree passed by the Trial Court and the First Appellate Court were set aside as the Trial Court and the First Appellate Court erred in considering the order passed by the High Court in a writ petition as res-judicata without allowing the parties to lead evidence.

JUDGMENT/ORDER

1. Appeal is admitted to consider the following substantial question of law.

"Whether the Trial Court and the First Appellate Court were justified in dismissing the suit of the plaintiffs considering Issue No.6 on resjudicate as preliminary issue, when the same is a mixed question of law and fact without allowing the parties to lead evidence?"

2. Though this matter is admitted today, with the consent of learned counsel for the parties, taken up for final disposal.

3. Parties are referred to as per their ranks before the Trial Court for the sake of convenience.

4. The present appeal is filed by the plaintiffs being aggrieved by the judgment and decree dtd. 9/3/2011 passed in O.S.No.27/2010 on the file of Senior Civil Judge Khanapur (hereinafter referred to as "the Trial Court" for short) in and by which the Trial Court while answering Issue Nos.6 & 7 as preliminary issues, dismissed the suit of the plaintiffs.

5. Being aggrieved by the same, the plaintiffs preferred regular appeal in R.A.No.133/2011 on the file of Presiding Officer, Fast Track Court, Khanapur (hereinafter referred to as "the First Appellate Court" for short). The First Appellate Court by the impugned judgment and order dtd. 20/4/2012 dismissed the appeal confirming the judgment and decree passed by the Trial Court.

6. Brief facts of the case :

6.1 It is the case of the plaintiffs that a non agricultural piece of land bearing Sy.No.53/A, TMC No.1360 measuring 2750 Sq.Ft. comprising of a building situated at Station Road Khanapur (hereinafter referred to as "the suit property" for short) was originally granted by defendant No.2-the State of Karnataka to defendant No.3- President Krida Mandal Club. Defendant No.3 was in uninterrupted and undisputed possession and ownership of the suit schedule property. Defendant No.3 had let out the suit property in favour of the father of plaintiff No.1 in terms of a registered deed of lease dtd. 5/4/1963 on a ground rent of Rs.10.00 per month. The father of plaintiff No.1 had constructed a building out of his own earning and after obtaining necessary permission from the Town Panchayath Authority on 15/4/1963.

6.2 That on 21/4/2009, defendant No.3 in its general body meeting resolved to alienate the suit property and in furtherance thereof sold the suit property in favour of the plaintiffs for valuable consideration of Rs.12,00,000.00 in terms of registered deed of sale on 4/6/2009. When things stood thus, defendant No.1 without any prior notice in violation of principles of natural justice had come to the suit property and seized the same with the help of police force.

6.3 The plaintiffs were constrained to approach this Court by filing a writ petition in W.P.No.62364/2010. This Court by order dtd. 4/6/2010 allowed the said writ petition restoring the possession of the suit property to the plaintiffs. The aforesaid facts and circumstances, constrained the plaintiffs to approach the Trial Court by filing aforesaid suit seeking relief of declaration and consequential relief of permanent injunction.

7. The defendants appeared and filed their written statement specifically contending that the suit was not maintainable in view of non compliance of Sec. 80 of the Code of Civil Procedure, 1908. That the suit was barred by principles of res-judicata in view of the observation made by this Court in W.P.No.62364/2010. That the plaintiffs were not a bonafide purchaser as the vendor of the plaintiffs did not have title in respect of the suit property. Hence, sought for dismissal of the suit.

8. Based on the pleadings the Trial Court framed the following issues for its consideration.

1. Whether the plaintiffs prove that they are the owners of the suit schedule property as bonafide purchaser for value without notice?

2. Whether the plaintiffs prove that their possession over the suit schedule property is irrevocable?

3. Whether the plaintiffs prove that cause of action?

4. Whether the plaintiffs are entitled for the relief of dec