JUDGMENT Brijesh Kumar, Member - This revision petition arises out of a judgment passed by the Additional Commissioner (I), Varnasi Division, Varanasi, on 13.8.1985 against the order dated 7.6.85 passed by the SDO Kerakat in case No. 61 u/s 176 of the Up Zamindari Abolition and Land Reforms Act - Sita Ram v. Jai Ram etc. The main grounds for revision is that the question of jurisdiction should be decided before proceeding for recording evidence, that the, suit was bared by Section 11 CPC or the principle of conclusiveness of decision, that the trail court completely lost sight of the legal position and refused to examine the question pertaining to jurisdiction and decide the preliminary issue first. 2. Briefly stated, the facts of the case are that a suit u/s 176 of the Act was filed in the court of SDO Kerakat. In the suit 7.6.1985 was fixed for evidence. No evidence was adduced by the defendant not was any application for adjournment was moved. On the contrary, the defendant moved an application contending that the suit for partition had already been decided by a competent court and so the suit should be dismissed. On this application, the trial court ordered that the question raised before it would be looked into after closing the evidence. Thereafter, the trial court, after closing the evidence of the defendant, fixed 15.6.1985 for arguments. Aggrieved by this order, the defendant preferred a revision before the Divisional commissioner. The learned Additional Commissioner dismissed the revision on 13.8.1985 observing that that trial court acted according to law. The defendant revisionist filed this revision petition against this order. 3. I have heard the learned counsel for the parties and have also perused the record. Replying on 1977 RD 144 and AIR Supreme Court 569, Sri A.S. Diwakar, learned counsel for the revisionist has argued that the preliminary issued should be decided first. His second contention is that the trial court should have disposed of the application moved by the defendant revisionist before allowing the evidence to be led. Sri S.K. Srivastava, counsel for the opposite party has contended that there was no prayer for deciding a preliminary issue. His second contention is that no such plea was raised in the written statement and if no defence it cannot be taken up late on. Sri S.K. Srivastava, counsel for the opposite party has contended that there was no prayer for deciding a preliminary issue. His second contention is that no such plea was raised in the written statement and if no defence it cannot be taken up late on. He has further contended that though a prior decree is a bar for filing a fresh suit, it may not necessarily affect the title of the party. The last contention made by the learned counsel is that the decree has been passed by a civil court which had no jurisdiction to decide suit court which had not jurisdiction to decide a suit for partition. The learned counsel a suit for the revisionist has raised point of res-judicate and argued that the trial court should have seen whether the question of res-judicate was involved. 4. After having given a careful thought to the arguments advanced by the learned counsel for the parties, I am of the view that the contentions made by the learned counsel for the revisionist do not carry any weight I have gone through the ruling given by the Hon'ble Member H.N. Agarwal in Ram Nath v. Nepal, 1977 RD 144. That case related to a consolidation proceedings in which the question involved was whether the suit was barred u/s 49 of the UPCH Act. The Hon'ble Member has held that a preliminary issued is one which is an issue of law upon the decision of which the whole case could be decided. Bur the question involving both facts and law is not a preliminary issue. In the instant case, the decree was passed by a civil court which was not a competent court to decide a case of partition. In my opinion, this decree can never act as res-judicate. I am, therefore, satisfied that both the courts below have acted within their jurisdiction and committed no error of law. 5. I, therefore, taking into consideration the entire facts and circumstances of the case, dismiss this revision petition. Let the records be sent back to the courts concerned.