Judgment 1. This is a second appeal by the defendants arising out of a suit instituted by the plaintiffs for partition of certain properties, namely, a house and five bighas of land appertaining thereto bearing municipal holding Nos. 1 and 2 within ward No. 9 of the Bhagalpur Municipality. 2. The court has framed the following question of law under the provisions of Sec.100 (4) (as amended) of the Civil P. C. "Whether plea of res judicata could have been allowed to be raised when the same was not raised anywhere in the pleadings nor any issue was framed on res judicata?" 3. In order to appreciate the question of law, I would state the relevant facts. Admittedly one Kali Prasad was the common ancestor of the plaintiffs and the defendants. The plaintiffs have claimed half share in the suit property. This claim was resisted by the appellants on the plea that there had been already a partition long before in the year 1940 and thereafter the father of plaintiff No. 1, namely, Anand Prasad, relinquished his interest in the property that he got on the said partition, for a consideration of Rs. 90.00 and as such, the plaintiffs had no right to claim partition of the suit property. Both the courts below have negatived the plea of the defendants and held that the parties still constituted to be a joint Hindu family there being no previous partition. Accordingly, the plaintiffs were held to be entitled to a half share in the suit property. 4. The question of res judicata arose in the following circumstances. In the year 1951 . the appellants Nos. 1 to 8 had instituted title suit No. 45 of 1951 in the court of the Munsif at Bhagalpur against all the present plaintiffs. The other three appellants, (appellants Nos. 7 to 9) are sons of plaintiff No. 2 of that suit. The question of res judicata arose in the following circumstances. In the year 1951 . the appellants Nos. 1 to 8 had instituted title suit No. 45 of 1951 in the court of the Munsif at Bhagalpur against all the present plaintiffs. The other three appellants, (appellants Nos. 7 to 9) are sons of plaintiff No. 2 of that suit. In said title suit the plaintiffs had claimed a declaration that they alone were the owners of the suit property the property being the same as in the present suit, on the same plea as advanced by them here as their defence, namely, that there had been an earlier partition in the family and thereafter there was relinquishment of the interest by the ancestor, Anand Prasad, aforesaid in their favour and, therefore, the defendants (now plaintiffs of the present suit) had no interest whatsoever in the same property. The defendants lost that suit in the trial court as well as in appeal. The plaint and judgments of the trial court and of the appeal court have been exhibited as exhibits 4, 8 and 5 respectively. In the plaint, that has been filed by the plaintiffs in the present suit, however, the facts of the said tide suit, were not stated but when the defendants took up the same pleas in the written statement, a petition was filed by the plaintiffs on 2-12-1986 (for appointing a receiver) where all those facts were stated by them and the defendants had also filed a rejoinder to the same. The relevant documents of that title suit, as already seen above, were also exhibited by the plaintiffs and although no issue was framed specifically that the pleas raised by the defendants were barred by the principle of res judicata, the trial court entertained this question, and decided the same in favour of the plaintiffs in para. 10 of its judgment and held that the defendants were not entitled to raise the same question in the present suit. 5. In the appeal, filed by the defendants in the court of appeal below, it was urged on their behalf that the question of res judicata, not having been raised either in the pleadings or by a specific issue, could not be raised by the plaintiffs. 5. In the appeal, filed by the defendants in the court of appeal below, it was urged on their behalf that the question of res judicata, not having been raised either in the pleadings or by a specific issue, could not be raised by the plaintiffs. The learned Additional District Judge negatived this plea and held that this plea could be raised by the plaintiffs in spite of the fact that no issue was framed on this question nor the matter was pleaded in the plaint. 6. Mr. Ashutosh Jha, who appeared in support of this appeal, contended that the courts below have committed an apparent error of few in allowing the plea of res judicata being raised when the same was not either raised in the plaint or any issue was framed on that question. He placed reliance upon a decision of the Judicial committee in the case of Jagdish Chandra Deo V/s. Gour Hari Mahato, AIR 1938 PC 258. This case was also cited in the lower appellate court. It is no doubt true that in this case there is an observation in support of the appellants that the party raising a plea of res judicata is not entitled to go into the question when it was not properly raised by the pleadings or in the issue. 7. The facts and the circumstances, however, in the case here are entirely different. The sole object of pleadings is that each side may be fully alive to the questions that are about to be argued in order to have an opportunity of bringing forward such evidence as may be appropriate to the issue. No doubt the plaintiffs would have done better had they stated the facts of the earlier title suit in their plaint itself but inasmuch as the parties to both the suits were the same the plaintiffs might have thought that the defendants having already failed earlier would not be so strong headed as to agitate the same said questions. When the plea was again raised in the written statement, all the necessary documents, namely, the plaint, the judgments and the decree were produced by them and exhibited in the case. The defendants, therefore, cannot be said to have been taken by surprise and had due notice of the facts. 8. When the plea was again raised in the written statement, all the necessary documents, namely, the plaint, the judgments and the decree were produced by them and exhibited in the case. The defendants, therefore, cannot be said to have been taken by surprise and had due notice of the facts. 8. It is quite true that the plea of res judicata is not one of jurisdiction of the Court but is one which a party may waive. From the facts, mentioned above, it is clear that the plaintiffs of this suit never intended to waive the same. It cannot be either said that the defendants had no notice of this point which was likely to be decided against them. A party cannot be considered to have given up a plea of res judicata where all the facts and documents necessary for ascertaining the point, are brought before a Court and the parties admit the fact of a previous suit. If once this condition is satisfied and evidence is led in on the point, even a party who might have waived the plea in the lower court, may revive it at the appellate stage of the same case where the other party have appealed from the decree. The situation in the present case, however, is still stronger. The plaintiffs raised this question in the trial court itself and the facts were so obvious, supported by overwhelming and unquestionable documents, that the question was rightly decided in their favour. 9. In the case of Ram Ratan Lal V/s. Kashinath Tewari, AIR 1966 Pat 235 it was held that if necessary evidence is on the record and although the plea of res judicata was not specifically taken in the written statement nor any issue was raised, such a question being a pure question of law, can be raised at any stage of the proceeding. 10. In my opinion, therefore, no error of law has been committed by the courts below and the question of law framed must be answered against the appellants. 11. Learned counsel for the appellants also endeavoured to raise some other question of law but in my opinion no other question arises for consideration of this Court. 12. I would, accordingly, dismiss this appeal with costs.