Judgment 1. This appeal is directed against the appellate order dated 11.11.2003 passed by the 1st Addl. District Judge, Nalanda at Biharsharif in T.A. No. 7/2003 arising out of T.S. No. 17/2000 whereunder he has remanded the suit for trial in accordance with law. Respondents no. 1 to 3 filed the above title suit, inter alia, for a declaration that the decision of the previous T.S. No. 18/84 and the appeals preferred therefrom are not binding on them and that they are in possession of the suit land as owner and in the alternative their title has been perfected by adverse possession. As during the pendency of the instant suit Baldeo Choudhary (defendant no. 5), father of the plaintiffs/ respondents no. 1 to 3 died, the other respondents were substituted in his place. 2. The case of the plaintiffs/ respondents in plaint is that Holding No. 863 belonged to their father (defendant no. 5) and his brother Etwari Choudhary. There was partition between Etwari Choudhary and Baldeo Choudhary, the father of the plaintiffs in which northern side was allotted to their father Baldeo Choudhary and they have been coming in peaceful possession over it. In February, 2000 the defendants/appellants came to their house and asked them to vacate it on the plea that they had obtained a decree in respect of that house. They made enquiry and came to know about T.S. No. 18/84 in which the above decree was passed. Their further case is that their father did not execute any sale deed dated 15.3.1972 in favour of Etwari Choudhary in respect of the said property nor gave him any possession. Therefore, the claim of the defendants/appellants over it on the basis of the sale deed of Etwari choudhary is false, and that they never also came in possession over the suit land on the basis of any sale deed. Their further case is that the plaintiff/respondent Santosh Choudhary, S/o Baldeo Choudhary was never made a party in that suit and one Butta Choudhary was made a defendant as son of Baldeo Choudhary, but he was not the son of Baldeo Choudhary. Plaintiffs no. 1,2 were minors at that time, but no G.A.L. was appointed for them. In the decree one Kaisar Imam, Advocate of Mohalla Moghal kuan has been shown as guardian; but there is no such person in that Mohalla. Plaintiffs no. 1,2 were minors at that time, but no G.A.L. was appointed for them. In the decree one Kaisar Imam, Advocate of Mohalla Moghal kuan has been shown as guardian; but there is no such person in that Mohalla. No written statement was filed on their behalf nor any cross-examination was done nor argument was advanced on their behalf in the suit. Their interest thus was not protected causing prejudice. 3. The appellants (defendants) filed written statement contending, inter alia, that the suit is barred by res-judicata. 4. The appellants then filed a separate petition under that as the suit is barred by res-judicata, the same be dismissed. The respondents filed rejoinder. The learned Sub-Judge I, Nalanda after perusing the judgments of the previous suit and the Vakalatnama filed in the 2nd appeal, came to this finding that in the earlier T.S. 18/84 the G.A.L. was appointed for the plaintiffs, who were minors and he had filed written statement. Their interest were well protected. They hotly contested the previous suit upto High Court. Therefore, no prejudice was caused to them. The Vakalatnama filed by Baldeo Choudhary in the second appeal also shows that the plaintiff Santosh Choudhary of this suit and Butta Choudhary of the previous suit is the same person. The property involved and the parties in both the suits was same. 5. The learned trial court, accordingly, by the order dated 30.1.2003 held that the suit was barred by res-judicata and is vexatious and he dismissed the suit. 6. The plaintiffs/respondents went in appeal. The learned Addl. District Judge after hearing the parties held that there should have been full-fledged trial. As the plaintiff has alleged fraud and collusion against the G.A.L. this question can be decided only after trial. He, accordingly, by the impugned order allowed the appeal, set aside the order of the trial court and remanded back the matter for proceeding in accordance with law. 7. Learned counsel for the appellants submitted that Baldeo Choudhary, the father of the plaintiffs/respondents, was also a defendant alongwith the minors in the previous title suit. The G.A.L. was duly appointed by the court in that suit to safeguard the interest of the minor. Baldeo Choudhary filed a written statement taking all possible defence. The G.A.L. had also filed a written statement. The interest of the father and the minors was same. The G.A.L. was duly appointed by the court in that suit to safeguard the interest of the minor. Baldeo Choudhary filed a written statement taking all possible defence. The G.A.L. had also filed a written statement. The interest of the father and the minors was same. They fought the suit hotly upto High Court. No prejudice, thus, could have been caused nor caused to the plaintiffs of the suit. He also submitted that the second appeal filed in the previous suit would show that the plaintiffs no.1 and 2 of this suit had become major at that time and only Butta Choudhary was minor, and the Vakalatnama filed by Baldeo Choudhary on his behalf and on behalf of his minor son, which is also signed by the plaintiffs No. 1 and 2 of this suit, would show that he had mentioned the alias name of Butta Choudhary as Rakesh Choudhary as well as Santosh Choudhary and therefore, it cannot be said that Santosh Choudhary (plaintiff) was not a party in the previous suit. He further submitted that the previous suit was brought by the appellants for declaration of their title, confirmation of possession in respect of the property which is also the suit property in the present suit and in the previous suit it has already been decided that the appellants had title over the suit land and had possession over the same and during the pendency of that suit they are dispossessed and their possession was restored in execution of decree. So, there was no question of adverse possession and as the issues have already been decided between the parties in the previous suit, the present suit has rightly been held by the trial court to be barred by res-judicata. He also submitted that as all the materials on record are sufficient to prove that there was no negligence much less gross negligence or fraud or collusion on the part of the G.A.L. and that the interest of the minors were well protected, their father also being a party, there was no necessity of any detailed evidence or trial. So, the order of remand passed by the first appellate court is liable to be set aside. 8. So, the order of remand passed by the first appellate court is liable to be set aside. 8. Learned counsel for the respondents, on the other hand, submitted that it is a matter of fact whether the G.A.L. was negligent or whether he had properly defended the minor and whether their interest was contrary to their father and therefore, it is necessary to lead evidence and so, the learned appellate court was justified in remanding the case for trial. He also relied on a Division Bench decision of this Court in the case of Baidya Nath Sahay V/s. Rambadan Singh, AIR 1966 Pat 383 , to show that it is not enough that a minor should merely be represented by a guardian but the guardian should represent him effectively. 9. It is an admitted position that the property in suit in both the cases is same. It is also not in dispute that the parties in both the suits are same (some of them being legal representatives of the deceased party). 10. The judgments passed in Title Suit No. 18/84 also show that the appellants had filed the suit for declaration of their title and confirmation of possession and for recovery of possession in case of dispossession. The plaintiffs/respondents, who were minors appeared in that suit but their father Baldeo Choudhary who was also a defendant, did not appear. The G.A.L. appointed by the court for the minors hence filed a written statement and contested the suit. The Sub Judge after trial held that the plaintiffs of that suit have valid title and they were in possession but they were dispossessed during trial. The suit was decreed on contest against the plaintiffs/respondents and ex-parte against their father Baldeo Choudhary. Baldeo Choudhary then filed an application under or. 9 R. 13 of the Code of Civil Procedure. The same was dismissed. In the meantime the possession of the suit land was restored to the plaintiffs in execution of ex-parte decree. Baldeo Choudhary then preferred appeal against the order of dismissal of his application under or. 9 R. 13 of the Code of Civil Procedure which was allowed. Baldeo Choudhary thereafter filed his written statement taking all possible defence. The suit was retried. The Sub Judge held that the plaintiffs (appellants here) have been able to prove title and possession over the suit land. 9 R. 13 of the Code of Civil Procedure which was allowed. Baldeo Choudhary thereafter filed his written statement taking all possible defence. The suit was retried. The Sub Judge held that the plaintiffs (appellants here) have been able to prove title and possession over the suit land. He accordingly decreed the suit in favour of the appellants. The defendant Baldeo Choudhary alongwith the plaintiffs of this subsequent suit preferred Title Appeal No. 80/92-2/93. The appeal was dismissed. The copy of the second appeal (Second Appeal No. 19/96) available in the lower court record shows that Baldeo Choudhary, the present plaintiffs Ashok Choudhary and Manoj Choudhary. who had become majors and Rakesh Choudhary @ Butta Choudhary, who was minor under the guardianship of father Baldeo Choudhary, filed second appeal and the order of the second appeal shows that as the whole suit was dependant upon the factual aspects and there was concurrent finding of both the courts below in favour of the plaintiffs of that suit, the second appeal was rejected. Therefore, from the above facts, it is clear that in the previous suit the dispute was with respect to title and possession over the suit property and the title and possession of the appellants was declared. 11. Hence, when in both the suits the matter directly and substantially in issue is the same and the suits are between the same parties or between the parties under whom some of them claim and the previous suit was decided by a court of competent jurisdiction, it is obvious that in this suit the principle of res judicata would apply. 12. The main question, however, in this appeal is whether the interest of the minors was adequately protected in the previous suit. 13. The case of the plaintiffs/respondents in their plaint is that no G.A.L. was appointed. The G.A.L. appointed is fake. No written statement was filed on their behalf. No cross-examination on behalf of the minors of the witnesses examined by the plaintiffs of that case was done and no argument was advanced. 14. The judgments of the trial court and the first appellate court of the former suit mentioned above, however, clearly show that the G.A.L. was appointed by the court and he had filed written statement on behalf of the minors. The judgments also show that the plaintiffs witnesses were cross-examined and argument was heard. 14. The judgments of the trial court and the first appellate court of the former suit mentioned above, however, clearly show that the G.A.L. was appointed by the court and he had filed written statement on behalf of the minors. The judgments also show that the plaintiffs witnesses were cross-examined and argument was heard. Admittedly their father was also a party in the suit and he had filed written statement taking all possible defence and there is nothing to show that his interest was different from the interest of the minors and he left any defence which should also have been taken. Therefore, when at least on behalf of the defendant Baldeo Choudhary cross-examination was done and the argument heard, it cannot be said that any prejudice was caused on account of non-cross examination of the witnesses etc. on behalf of the minors. 15. According to the impugned order, the minors have alleged collusion and fraud, but the plaint of the present suit does not show that any such allegation has been made against the G.A.L. As provided under Or. 32 R.3A(2) of the Code of Civil Procedure, of course, a minor can obtain relief by reason of misconduct or gross negligence on the part of the guardian, but from the discussions made above, there does not appear any negligence or misconduct on the part of the G.A.L. Besides this, a decree against the minors can be set aside on the above ground only when as provided under Or. 32 R. 3A(2) itself they resulted in prejudice to the interest of the minor. But when there father was also a defendant and had no interest adverse to that of his sons and they fought the previous suit upto High Court, by no stretch of imagination it can be said that any prejudice was caused to the minors. 16. Then, it is, of course true, as has been held by the learned appellate court that it is a matter of fact whether the G.A.L. acted properly or any prejudice was caused to the minor, but it is not necessary in all cases to lead evidence for proving these facts. They can also be proved on the admitted facts and documents. They can also be proved on the admitted facts and documents. So, when on the basis of admitted documents available on record and after hearing the parties, the Sub Judge found that the interest of the minors in the previous suit was properly protected and no prejudice was caused, the learned Addl. District Judge should have first assessed whether the documents were sufficient to decide the issue and whether the learned Sub Judge was correct in his decision and then decide whether there was necessity of oral evidence and remand the case if so required. But the learned appellate court without considering all these passed the impugned order. 17. As regards the question whether the plaintiff Santosh Choudhary was a party in the former suit, the learned Sub Judge has rightly pointed out that the Vakalatnama filed by Baldeo Choudhary in the second appeal, which is also not a disputed document clearly shows that Rakesh Choudhary, Butta Choudhary and Santosh Choudhary was the same person and son of Baldeo Choudhary. It is not disputed that besides plaintiffs no. 1 and 2 Baldeo Choudhary had only one minor son. Thus, it cannot be said that the plaintiff Rakesh Choudhary of the subsequent suit was not a party in the former suit. 18. Then as regards the plea of adverse possession taken by the plaintiffs/ respondents, though the plea was not taken in the former suit, as the plea of title and possession was taken, this plea is hit by constructive res-judicata. 19. It may, however, be pointed out here that under Or. 14 R. 2 of the Code of Civil Procedure all the issues arising in a suit must be tried together notwithstanding that a case can be disposed of on a preliminary issue except where the preliminary suit relates to the jurisdiction of the court or a bar to the suit created by any law for the time being in force. The Supreme Court in the case Abdul Rahman V/s. Prasony Bai & Anor., AIR 2003 SC 718 , has held that the issues of Res-judicata constructive res-judicata as also maintainability of the suit can be adjudicated upon as preliminary issue and such issues of facts, where facts are admitted, ordinarily should be decided as preliminary issue. 20. Therefore, in this case also in spite of bar under Or. 20. Therefore, in this case also in spite of bar under Or. 14 R. 2 of the Code of Civil Procedure the learned Sub Judge was justified in deciding the question of res-judicata as preliminary issue, and as he has rightly held that the present suit is hit by res-judicata and find that it was not proper for the learned appellate court without assessing whether the oral evidence was in fact required, to pass the impugned order. Hence for the ends of justice, to avoid further delay in deciding the issues without remanding the matter to the appellate court, the order of the trial court disposing of the suit as barred by res-judicata is confirmed and the impugned order is set aside. The appeal is allowed.