MAHENDRA MAHESHWARI, J. - (1.) AGGRIEVED against the judgment and decree dated 17.2.2003 passed by the learned Additional District Judge, Phalodi (for short "the appellate Court" hereinafter) in Civil Appeal Decree No. 02/2002, whereby the appeal preferred by the appellants - defendants against the judgment and decree dated 12.2.2002 passed by the learned Civil Judge (Senior Division), Phalodi, District Jodhpur (for short "the trial court" hereinafter) in Civil Regular Suit No. 88/1999 decreeing the suit in favour of the respondents - plaintiffs, has been dismissed, the Ganesh Das & Others, the appellants herein have preferred this second appeal assailing the judgment and decree on the various grounds.
(2.) CONCISELY stated, the factual position of the case as emerged from the record of the trial court as well as the first appellate court is that a suit was preferred by the respondents -plaintiffs for possession and permanent injunction. The learned trial court while deciding the suit, vide aforesaid judgment and decree impugned dated 12.2.2002 passed the decree in the terms that the appellants -defendants shall hand over the vacant possession of the disputed land/property as mentioned in the suit situated in southern -eastern side of the main property covered by Patta No. 254 -A which has been described as A,B,C,D,E,F,G & H in the attached map with the plaint, to the respondents - plaintiffs within a period of two months and by way of mandatory injunction, the trial court further restrained the appellants -defendants from raising any illegal construction in the disputed premises either by themselves or through anyone else. Being aggrieved against the judgment and decree dated 12.2.2002, the appellants -defendants preferred the appeal in the first appellate court which has been dismissed by the appellate court, while directing that appellants -defendants should hand over the possession of the disputed property to the respondents -plaintiffs within stipulated period of three months. Hence, the appellants -defendants have preferred this second appeal before this Court against the aforesaid both judgments and decrees passed by the courts below.
(3.) WHILE admitting the second appeal, this Court framed the following substantial question of law vide order dated 23.7.2003 : - "Whether the earlier decision given on an issue in previous suit against the party, who cannot challenge the finding of that issue on the ground of dismissal of the suit can be treated as res -judicata in subsequently filed suit ?" ;