Shri Sanjay K. Agrawal, J.

1. The substantial questions of law involved, formulated and to be answered in the second appeal preferred by plaintiffs is as under:-

"(1) Whether both the courts below were justified in dismissing the suit treating the issue of res judicata as preliminary issue contrary to the provisions contained in Order 14, Rule 2 (2) of the Code of Civil Procedure as the question of res judicata is neither affects jurisdiction of court nor it is a bar to the suit created by any law for the time being in force ?

(2) Whether both the courts below were justified in deciding the issue of res judicata as preliminary issue without recording evidence of the parties ?"

2. The above stated substantial questions of law are required to be answered on the following factual backdrop:-

(i) The appellants/plaintiffs herein instituted a civil suit seeking relief of declaration of their title, confirmation of possession, partition and declaration of decree passed in Civil Suit No.4-A/79 and Appeal No.186/1981 to be null & void. In that Civil Suit, defendant No. 1 appeared before the trial Court seriously controverting the averments made in the plaint and averred that judgment & decree dated 26.03.1981 passed in Civil Suit No.4-A/79, which is duly affirmed the by first appellate Court in Civil Appeal No. 186/1981 would operate as res judicata and the present suit is hit by Section 11 of the Code of Civil Procedure.

(ii) The trial Court, upon pleadings of the parties, by order dated 22.03.1996 framed as many as 10 issues including issue of res-judicata as issue No. 5.

3. The trial Court, by its order dated 6.11.2016 passed in Civil Suit No.11-A/2004 treated the issue No. 5 as a preliminary issue under Order 14, Rule 2 sub-rule 2(b) of the CPC and dismissed the suit as barred by the provisions contained in Section 11 of the CPC deciding the preliminary issue in affirmative.

4. The present plaintiffs preferred first appeal under Section 96 of the Code of Civil Procedure. The First appellate Court, by its impugned judgment & decree dated 17.04.2014, dismissed the first appeal affirming the order passed by the trial Court, dismissing the suit.

5. Impugning the legal acceptability and sustainability of the order dated 17.04.2014 passed by the First Appellate Court, the second appeal under Section 100 of the CPC has been preferred by the plaintiffs (appellants herein), which has been admitted for final hearing on the substantial questions of law as incorporated in opening paragraph of this judgment.

6. Mr. Manoj Paranjpe, learned counsel appearing for the appellants/plaintiffs would submit that the question of res-judicata does not strike to the root of the jurisdiction of the Court trying subsequent suit and, therefore, it could not have been taken as a preliminary issue by the trial Court under Order 14, Rule 2 (2)(b) of the CPC. He would further submit that the plea of res judicata is a mixed question of law and fact and it could not have been decided without recording evidence of the parties. He placed reliance upon the judgment of the Supreme Court in the matters of V. Rajeshwari (Smt.) v. T.C. Saravanabava (2004) 1 SCC 551, Vaish Aggarwal Panchayat v. Inder Kumar & others AIR 2015 SC 3357 and Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (Dead) Through Legal Representative and others (2015) 6 SCC 412 in support of his submission.

7. On the other hand, Shri Prafull N. Bharat, learned counsel appearing for the respondents would submit that in judgment & decree passed by the trial Court in Civil Suit No.4-A/79 and affirmed by the First Appellate Court in Civil Appeal No. 186/1991 are not in dispute and, therefore, when the facts are admitted, plea of res judicata can be decided as preliminary issue as the same relates to jurisdiction of the Court. He placed reliance upon the judgment of the Supreme Court in the matters of Pandurang Dhondi Chougule & others v. Maruti Hari Jadhav and others AIR 1966 SC 153, Abdul Rahma