An issue cannot be tried as a preliminary issue if evidence has to be recorded on that issue.

1. After hearing the learned counsel for the parties I am of the view that the Court below exceeded its jurisdiction in treating issue No. 4 as a preliminary issue. Issue No. 4 "Whether the suit is barred by principle of res judicata? OPD" has been ordered to be treated as preliminary by the impugned order. The application for treating issue No. 4 as preliminary was filed after the issues were framed. As many as six issues have been framed on meirts.

2. Issue No. 4 was sought to be treated as a preliminary issue on the basis that a decree for specific performance was passed in favour of the defendant by judgment and decree of this Court dated 22-3-1983 which would operate as res judicata between the parties. The undisputed facts are that one house was allotted to Ram Lal by the Rehabilitation Department. Half portion of the same was agreed to be sold to Sohan Lal and possession of that half portion was delivered to him under the agreement to sell. When Ram Lal failed to execute the sale deed. Sohan Lal filed a suit for specific performance of the contract. The trial Court decreed the suit for specific performance but the lower Appellate Court dismissed the suit after recording a finding that the agreement of sale was vague because the property was not specified. However, on second appeal to this Court, the judgment and decree of the trial Court granting specific performance of the contract was restored on the finding that the agreement of sale was not vague because whatever was agreed to be sold was givers possession of to Sohan Lal and, therefore, the parties very well knew what was agreed to be sold. Therefore, for the portion, which was in possession of Sohan Lal, a decree for specific performance was granted by the trial Court and this Court. Admittedly, the remaining portion of the house remained under the ownership and possession of Ram Lal.

3. On 6-5-1983, the legal representatives of Ram Lal filed a suit for permanent injunction against Sohan Lal to restrain him from taking possession of another part of the remaining portion of the house or open site which was in possession of Ram Lal and now under their possession. Injunction was sought because Sohan Lal defendant wanted to encroach upon some part of their house and in case he succeeds in encroaching on any part of their house during the pendency of the suit, in that case it was prayed that a decree for mandatory injunction be passed against him. As already observed, six issues were framed on merits. Under issue No. 1 the plaintiffs had to prove that they were owners in possession of the site as alleged in para 3 of the plaint. Under issue No. 6 it was for the defendant to prove whether he (the defendant) was owner in possession of the site in dispute. If it is proved on evidence that the defendant is owner in possession of the site in dispute on the basis of the decree for specific performance, then under issue No. 4a finding has to be returned that the suit is barred by the principle of res judicata. If under issue No. 1 it is held that the plaintiff is owner in possession of the site in dispute and this site is different from the site which was the subject-matter of the decree for specific performance, then under issue No. 4a finding will be returned that it does not operate as res judicata, because the present suit relates to the other portion regarding which decree for specific performance was not granted. There can be a third eventuality as well, i.e. partly the suit property may be the same which was the subject matter of the earlier specific performance decree. Then to that extent the finding under issue No. 4 would be that it operates res judicata and for the remaining portion, it will not operate as res judicata. These matters cannot be decided without evidence and if evidence is to be recorded then even the issues on law cannot be treated as preliminary issues as held by the Supreme Court in S. S. Khanna V/s. Brig. F. J. Dillon, AIR 1964 SC 497. The