JUDGMENT

Sanjay Agrawal, J. - This miscellaneous appeal has been preferred by the Defendants questioning the legality and propriety of the judgment dated 28.06.2018 passed by the Learned District Judge, Bemetara in Civil Appeal No.19A/2017, whereby the judgment and decree dated 03.07.2017 passed by the Civil Judge, Class-II, Saja, District Bemetara in Civil Suit No. 22- A/2015 has been reversed and the matter has been remanded in exercise of its power enumerated under Order 41 Rule 23 of Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') for its decision afresh in accordance with law.

2. Briefly stated the facts of the case are that a suit for declaration of title, partition, separate possession and also for injunction has been instituted by the Plaintiff/Respondent claiming one-third share over the suit property described in Plaint Schedule-'A'. It is alleged in the plaint that the property in question is the ancestral property which was inherited by his father Rewaram Lodhi upon death of his grandfather Ganesh, erstwhile owner of it. It is pleaded further that his mother Bhangeen Bai after obtaining certain properties from father got separated herself from the joint family and after that rest of the property, i.e., the suit land remained in the joint family property. According to further averments made in the plaint, the suit property described in Plaint Schedule 'A' was got partitioned by the Defendants without his knowledge and succeeded to get the revenue papers mutated on 04.03.1998. It is pleaded further by the Plaintiff that when he demanded partition of the suit land in the month of January, 2015, it was refused by them, therefore, he has been constrained to institute the suit in the instant nature.

3. Upon receiving the summons of the suit, an application seeking rejection of the plaint has been made by the Defendants alleging inter-alia that prior to the institution of the suit, the Plaintiff and his sons had filed a suit, being Civil Suit No. 13-A/2011 claiming declaration of title, injunction, possession and also for damages with respect to the properties bearing Khasra No.941 and 1832 admeasuring 2.61 and 3.50 hectares respectively situated at Village Parasbod, Tahsil Saja, District-Bemetara. The said suit was dismissed by the trial court vide its judgment and decree dated 27.09.2014, therefore, the instant suit as framed is not maintainable and liable to be rejected on the principles of res judicata as provided under Section 11 of CPC.

4. In reply to the aforesaid application, it is stated by the Plaintiff that the subject matter involved in an earlier instituted suit is quite different from that of the present suit and stated further that the issue of res judicata involves a mixed question of law and fact and in absence of any issues being framed, it cannot be held that the suit is barred by the principles of res judicata.

5. After considering the aforesaid submissions of the parties, the trial Court vide its judgment dated 03.07.2017 arrived at a conclusion that since partition has already been effected on 04.03.1998 and was decided in an earlier instituted suit being Civil Suit No.13-A/2011 on 27.09.2014, the suit as framed is, therefore, barred by doctrine of res judicata under Section 11 of CPC. As a consequence, the suit is held to be not maintainable and accordingly, it was dismissed.

6. The aforesaid finding of the trial Court has been reversed by the lower appellate Court in an appeal preferred by the Plaintiff. It has been observed by the lower appellate Court that the subject matter involved in an earlier instituted suit was with regard to the declaration of title, possession and for damages in relation to the properties bearing Khasra No.941 and 1832 and is, therefore, distinct from the nature of the present suit where the claim for partition along with other reliefs have been made by the Plaintiff. It held further that the question of res judicata is not a pure question of law and i