R.K. Merathia, J. - (1.) This writ petition has been filed for quashing the order dated 21.4.2009, passed by learned Additional Munsif, Ranchi in Eviction Title Suit No. 28 of 2001, rejecting the petition filed on behalf of defendants-petitioners on 16.8.2003 under Order 14, Rule 2 read with Section 11 of the CPC.
(2.) Mr. Prabhash Kumar, learned counsel for the petitioners, submitted that in view of the earlier suit contested up to second appeal in this court, the trial court should have decided that the suit was barred by res judicata as a preliminary issue.
(3.) It appears that the predecessor in interest of the plaintiffs-respondents filed a Title Eviction Suit being T.S. No. 165/80, which was decreed but it was set aside in appeal and it was held that the sale deed of the plaintiffs was illegal and void but in the second appeal preferred by the plaintiffs, it was held by this Court that plaintiffs' registered sale deed dated 30.3.76 and deed of rectification dated 30.6.80 were valid and genuine and plaintiffs had derived valid right, title and interest over the suit property but the second appeal was dismissed on the ground that there was no valid service of notice under section 106 of the T.P. Act. But it was concluded that the plaintiffs were owner of the property and they were landlords with respect to the vacant piece of land and the defendants were tenants. Though the previous suit was filed after service of notice under section 106 of the T.P. Act but it was held therein that there was no valid service of notice on the defendants and therefore this Court did not pass order for eviction. Thereafter, the present suit has been filed after serving the notice under section 106 of the T.P. Act and on the ground of personal necessity and default. The defendants have filed written statement contesting and controverting the entire allegations made in the plaint. The trial court is of the opinion that that the issue of res judicata and maintainability will be decided along with other issues as the issue raised on behalf of petitioners is a mixed question of law and fact.;