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 & de