Rajesh H. Shukla, J.

1. The present Second Appeal has been filed by the appellants-original plaintiffs under Section 100 of the Civil Procedure Code being aggrieved with the impugned judgment and order in Regular Civil Appeal No. 10 of 2016 by the Additional District Judge, Surendranagar dated 30.07.2016 confirming the judgment and order in Special Civil Suit No. 41 of 2012 below Exh. 39 by the 2nd Additional Sr. Civil Judge, Dhrangadhra dated 30.10.2015 posing substantial questions of law as under:-

"(A) Whether he facts and circumstances of the case a civil suit can be decided on the ground of res-judicata without framing the issues in the subsequent suit and without recording the evidence and without coming to the conclusion that the lis between the parties is the same?

(B) Whether the courts below had failed to consider that for dismissing the suit on ground only O.7 R. 11 of Code of Civil Procedure, 1908 would be applicable and the ground of res-judicata would not be available under O.7 R. 11 of Code of Civil Procedure, 1908?

(C) Whether the defendants are required to state in the Application below Exh. 39 that how the res-judicata is applicable between the different parties

(D) Whether, in the facts and circumstances of the case, the provisions of Section 11 of the Civil Procedure Code, 1908, is applicable when the possession of the land is with the Appellants and the Judgment and Order passed in Special Civil Suit No. 8/1997 is not followed?

(E) Whether in the facts and circumstances of the case the courts below have failed to consider the fact that the earlier suit being Special Civil Suit No. 8/1997 filed by the plaintiff was for the purpose of an injunction, wherein the Hon'ble court has come to the conclusion the defendants No. 2 to 4 of the suits if wants to have the possession they have to initiate legal proceedings under the revenue laws to set aside the sale executed in favour of in predecessor in title of the appellant as the same is within the jurisdiction of revenue officer, and as without initiating any revenue proceeding or any other proceedings for obtaining the possession from the present appellant the suit is on a different cause of action and hence, principle of res-judicata would not be applicable?

(F) Whether in the facts and circumstances of the case, in view of the provision of section 63AB of the Gujarat Tenancy and Agriculture Lands Act, if the present appellants are an agriculturist in that case the revenue officer are entitled to initiate any proceedings on the ground that predecessor in title of the present appellant was not an agriculturist?

(G) Whether the courts below has failed to consider that when there is special provision for dismissing the suit on as provided under O.7 R. 11 of the Code of Civil Procedure, 1908 the section 151 of the Code of Civil Procedure, 1908 can be exercise?

(H) Whether the registered Sale Deed of the Appellants is in force and the Appeal Court can allow the second Sale Deed of the same land?"

2. Heard learned advocate, Shri H.M. Parikh for the appellants and learned Senior Counsel, Shri Mehul Shah appearing with learned advocate, Shri Jenil Shah for the respondent Nos. 3 and 4.

3. Learned advocate, Shri Parikh referred to the papers particularly the order below Exh. 39 and submitted that both the Courts below have failed to appreciate the provision of Section 11 of the Civil Procedure Code and the res judicata. He referred to the background of the facts and papers and submitted that suit could not have been dismissed without providing an opportunity of hearing the evidence on the ground of res judicata. He emphasized that the parties are different and each issue has not been considered and decided. For that purpose, he referred to the judgment and order below Exh. 39 by the first Appellate Court and submitted that the reasons recorded clearly suggest that earlier suit was for the possession, whereas subsequent suit being Special Civil Suit No. 41/2012 is for diffe