Hon’ble Pramod Kumar Srivastava, J.—Heard learned counsel for the parties.

2. This revision has been filed against the order dated 8.12.2008 passed by Civil Judge (Senior Division), Gorakhpur, in Original Suit No. 538/2003 (Yudhishthir Dhar Dubey v. Smt. Shiv Patti Devi and others) by which application 126-Ga of defendants under Order-VII, Rule-11 CPC was rejected.

3. The fact relating to this revision are that defendant’s side had filed a Writ Petition No. 17599/1999 for cancellation of registered free hold sale-deed dated 11.1.1999. This writ petition was allowed and the sale-deed in question was cancelled by judgment dated 8.5.2003 of this High Court. Thereafter original suit No. 538/2003 (Yudhishthir Dhar Dubey v. Smt. Shiv Patti Devi and others) was filed in the Court of Civil Judge (Senior Division), Gorakhpur for certain property and it was pleaded that the disputed property is different from that property which was subject-matter of writ petition No. 17599/1999. The plaintiff had sought relief in this suit for declaring that judgment of the High Court in Writ Petition No. 17599/1999 relating to said free hold registered sale-deed was for different property, other than one mention in the plaint, and defendants 1st set (Smt. Shiv Patti Devi and Paras Nath Gupta) be restrained from interfering in possession of plaintiff or damaging the construction of plaintiff present over this property in suit.

4. The defendants of original suit No. 538/2003 had moved application ‘126-Ga’ dated 2.8.2008 under order-VII, Rule-11 CPC in which it was stated that relief sought in plaint relates to the matter that has already been decided finally by High Court in Writ Petition No. 17599/1999, and special leave petition against said order has already been dismissed by Hon’ble Apex Court; therefore, the present suit is abuse of process of Court. In other original suit No. 530/1994, judgment dated 8.10.1998 passed, by which it was ordered the plaintiff be not evicted from disputed land. After the death of Smt. Shiv Patti Devi, the Will executed by her in favour of her husband has become effective, so plaintiff is estopped from filing the suit against the defendants. Therefore for this reason, this suit should be dismissed.

5. The trial Court had accepted the objection against the said application of plaintiff, afforded opportunity of hearing and thereafter passed order dated 8.12.2008 by which application 126-Ga under Order-VII, Rule-11 CPC was rejected. In this order, the trial Court had given finding that Writ Petition No. 17599/1999 was filed for cancellation of registered free hold sale-deed dated 11.1.1994,which was cancelled by judgment of said writ petition. The application for recalling the said order was dismissed and the S.L.P. preferred against the said order was also dismissed on 4.8.2003; but this fact can be decided only after receiving the evidences of the parties as to whether the property in dispute in the present suit and in writ petition No. 17599/1999 are the same or different. Since it is a mixed question of fact and law, so it is not possible to decide this matter at this stage. So application 126-Ga cannot be allowed. Aggrieved by this impugned order dated 8.12.2008 of the trial Court, the defendants of original suit had preferred present revision.

6. Learned counsel for the revisionist contended that disputed property involved in writ petition No. 17599/1999 and original suit No. 538/2003 are the same. He pleaded that since the rights of the parties have been finally determined in the judgment dated 8.5.2003 of this Court passed in writ petition No. 17599/1999, therefore the proceedings for the same property between the same parties in original suit No. 538/2003 is barred by principles of res judicata under Section 11 CPC. He contended that being barred by Section 11 CPC, the original suit should be dismissed under Order-VII, Rule-11 CPC.

7. Learned counsel for the respondent contended that plaint can be rejected