ANIL KSHETARPAL, J.

1. Vide this judgment, I shall be disposing of two cases bearing RSA No.278 of 2012 and CR No.5256 of 2013 as the issue which need determination is common and most of the parties are also common and counsel for the parties are also agreed that both the cases can be conveniently disposed of by a common judgment.

2. In the considered opinion of this Court, the following substantial questions of law arise for consideration:-

1. Whether in a previous judgment arising out of a suit for permanent injunction, if a issue/question which is directly and substantially has been answered/decided, would operate as res judicata in subsequent suit?

2. Whether it is necessary to file the pleadings of the previous suit before question of res judicata is examined?

3. Defendant-appellant is in the regular second appeal against the judgment passed by the learned First Appellate Court reversing the judgment and decree passed by the learned trial Court in which plaintiffs seeking primarily declaration to the effect that the plaintiffs are co-owners in possession to the extent of equal share in the land measuring 8 kanals and 8 marlas. Other reliefs have also been sought for which would be taken note at an appropriate stage.

4. Undisputed facts are that Bansi was owner of 53 kanals and 9 marlas of land. He had only two daughters namely Phoolwati and Jagni. Initially, there was a dispute amongst the daughters when Jagni claimed that she is in possession of the entire property given by her father. The litigation culminated into a regular second appeal in the High Court being RSA No.2668 of 1986 wherein it was concluded that both the daughters are co-owners.

5. Plaintiffs No.1 to 4 and late Sh. Ram Mehar predecessor of plaintiffs No.5 to 11 purchased some part of the land vide registered sale deed dated 07.11.1986 after the judgment passed by the High Court. On the other hand, the defendant claims that she has purchased the property from Jagni vide sale deed dated 05.05.1989.

6. Learned trial Court dismissed the suit filed by the plaintiffs on the ground that the suit filed by the plaintiffs is barred by principle of res judicata in view of the previous judgment passed by the Court in civil suit No.155 of 31.05.1988 decided on 22.02.1992. However, the learned First Appellate Court has reversed the finding and held that the plaintiffs and defendant are co-owners in possession of the land with respect to half share of the land measuring 8 kanals and 8 marlas. It will be noted here that the remaining land which was initially owned by Bansi later on inherited in equal share by Phoolwati and Jagni has been compulsorily acquired by the State Government under the Land Acquisition Act, 1894. The revision petition is with respect to the proceedings arising out of apportionment of payment of compensation.

7. Learned First Appellate Court has held that the judgment of the Court dated 22.02.1992 is inter parties while deciding the suit for permanent injunction and issue of partition between the parties was only incidental and therefore, it would not operate as res judicata. The Court has further found that the pleadings of the previous suit have not been filed and therefore, it would be possible to conclusively decide the question of res judicata.

8. So question which arise is whether findings in the previous judgment inter-parties dated 22.02.1992 is res judicata or not. The issues framed while deciding the previous suit are extracted as under:-

“1. Whether the plaintiffs are joint owners in possession of suit property as alleged? OPP

2. Whether the defendant is exclusive owner in possession of Killa No.11/1 alongwith tubewell installed therein? OPD

3. Whether the suit property has been partitioned as alleged? OPD.

4. Whether the plaintiffs are estopped from filing the present suit by their acts and conduct? OPD.

5. Relief.”

9. Issue No.1 between the parties was whether plaintiffs, who are plaintiffs in the previous suit also, are joint owners in pos