JUDGMENT :

Dwarka Dhish Bansal, J.

This second appeal has been preferred by appellants/plaintiffs challenging the judgment and decree dated 29-1-2000 passed by Additional District Judge, Sohagpur in Civil Appeal No. 17-A/1993, affirming the final order dated 27-7-1993 passed by Civil Judge Class-II, Pipariya in Civil Suit No. 4-A/1989, whereby dismissing the suit as barred by res judicata.

2. Facts in short are that the appellants/plaintiffs had instituted a suit for declaration of title and permanent injunction with the allegations that the plaintiff 1 is owner of plot No. 15 admeasuring 1740 sq.ft. of Khasra No. 2/1 situated in Pipariya, which was purchased by her from Rameshchandra vide registered sale deed dated 1-4-1980. It is also alleged that respondent had filed a civil suit No. 38-A/80 for possession of land 0.04 acre, which was dismissed on 4-5-1982 by the Court of Civil Judge Class-II, Sohagpur, which was reversed in appeal and suit was decreed on 8-10-1987 by first Appellate Court, which attained finality vide order dtd. 5-5-1988 passed in SA No. 15/88 by High Court.

3. The appellants further pleaded that Khasra No. 2/1 was having total area 0.26 acre, out of which the defendant purchased 0.17 acre vide registered Sale deed dtd. 23-1-1961. As mutation of defendant was done over 0.13 acre only, therefore, the defendant got registered sale deed on 15-10-1962 again about an area 0.04 acre, as such the defendant is bhumiswami of an area 0.17 acre. The plaintiffs contended that plaintiff’s land/plot admeasuring 0.04 acre is different from the property owned by the defendant. Accordingly, the plaintiffs instituted the suit for declaration of title and permanent injunction.

4. The respondent/defendant appeared and filed written statement denying the plaint allegations and contended that neither Rameshchandra Sharma nor the plaintiff 1 is owner of the plot admeasuring 1750 sq.ft. It is contended that there is already a decree passed in respect of the suit plot in favour of the defendant and the decision given in previous Civil Suit No. 38-A/80 operates res judicata to the present suit. On inter alia contentions the suit was prayed to be dismissed.

5. Record shows that on the basis of pleadings of the parties, learned trial Court did not frame requisite issues and on 27-6-1990 framed only one issue of res judicata and after hearing arguments, decided the same and dismissed the suit vide its final order dated 27-7-1993 holding the present/later suit to be barred by principle of res judicata.

6. Against the final order dated 27-7-1993, the plaintiffs/appellants preferred civil appeal, which was also dismissed by first Appellate Court vide impugned judgment and decree dated 29-1-2000.

7. Challenging the final order and judgment and decree passed by learned Courts below, instant second appeal was filed, which was admitted for final hearing on 24-8-2005 on the following substantial question of law :

“Whether the suit of the plaintiffs/appellants could have been legally dismissed on the ground of res judicata without affording the parties an opportunity to adduce evidence and pleadings of the earlier suit?”

8. Learned counsel for the appellants/plaintiffs submits that after framing preliminary issue of res judicata, learned trial Court did not even fix the civil suit for evidence of the parties and without recording evidence and on the basis of arguments of the parties, decided the preliminary issue of res judicata and the procedure adopted by learned trial Court is contrary to the provision contained in Order 14, Rule 1 and 2, CIVIL PROCEDURE CODE as well as contrary to the settled