Judgment R.S.Garg, J. ( 1. ) The petitioners/defendants no. 1 to 3 being aggrieved by the order dated 18.2.2010 passed by learned Vlth Civil Judge, Class I, Jabalpur in Civil Suit No.2-A of 2009 ( Arun Kumar Vasudeo and others Vs. Shyama Prasad Datta and others) rejecting the plaintiffs application filed under Order 7 Rule 11 C.P.C refusing to decide the question of resjudicata at the initial stage has come to this Court with a submission that the order passed by the learned Court below is patently illegal and deserves to be set aside. ( 2. ) The short facts necessary for disposal of the present writ petition are that respondents no. 1 to 3 Arun Kumar Vasudeo, Dulichand Bhai Palan and Purushottam Sanghi in their capacity as trustees of the Pinjra Pole Goushala Charitable Registered Public Trust filed a civil suit for declaration and injunction. It was contended in the plaint that one P.C. Bose had executed a registered gift deed on 28.11.1912 in relation to disputed land Survey No.44/1 admeasuring 1.890 hectare of Village Polipather and in view of the said gift deed the plaintiffs are entitled to declaration that the present petitioners (defendants no. 1 to 3) have no right, title or interest in the property. They also prayed that a declaration be granted in favour of the plaintiffs that the sale deeds executed in favour of defendants no.4 to 9 on different dates, were null an void and they do not have any right title or interest in favour of the said defendants. It was also prayed that the defendants no.4 to 9 be restrained from selling the land in dispute or raising any construction on the same. After notices were issued the present petitioners have filed an application under Order 7 Rule 11 C.P.C. while the defendants no.5 to 9 preferred a separate application under Order 7 Rule 11 C.P.C. Read with Section 11 C.P.C for rejection of the plaint and/or in the alternative dismiss the suit because of the bar contained under Section 11 of the Code of Civil Procedure. It was contended by the said defendants that on an earlier occasion the Trust itself had filed civil suit on 26.3.1996 which was later on numbered as Civil Suit No. 171-A of 2001 and was decreed by IXth Civil Judge, Class I, Jabalpur on 29.11.2001. It was contended by the said defendants that on an earlier occasion the Trust itself had filed civil suit on 26.3.1996 which was later on numbered as Civil Suit No. 171-A of 2001 and was decreed by IXth Civil Judge, Class I, Jabalpur on 29.11.2001. The said judgment and decree were challenged by the present petitioners, Rakesh Agrawal (respondent no. 9) and Amit Sharma (respondent no.7)in Regular Appeal No.39-A/2004 which was allowed by XIIth Additional District Judge, Fast Track Court, Jabalpur on 18.3.2005 and suit of the trust was dismissed. It is now undisputed before us that the trust had filed Second Appeal No-489/2005 which was dismissed by the High Court on 30.11.2006 and it was held that the Trust had failed in proving that the property could be gifted to them or the trust became the owner of the property or the trust was in possession of the property however, the High Court was also of the opinion that the claim of the trust that it had acquired Bhumiswami rights by prescription/adverse possession was also not justified. Undisputedly the judgment delivered in Second Appeal No.479/2005 was challenged in S.L.P. of 2008 but the S.L.P came to be dismissed by the Supreme Court on 4.4.2008 on the ground of limitation. It also came on the record that one B.K. Tiwari had filed Writ Petition No.6195/2007 in the public interest but however, that petition was dismissed by the High Court on 4.2.2008. The said judgment delivered by the High Court was challenged by B.K. Tiwari in Special Leave to Appeal (Civil) 2008 but the petition for Special Leave was withdrawn on 5.9.2008. In view of these admitted facts it was contended before the learned trial Court that the suit now cannot have any cause of action. The suit was barred by limitation, the suit was hit by the provisions of resjudicata and was liable to be dismissed. The plaintiffs opposed the application and contended that question of resjudicata and limitation on the facts of the present case were mixed questions of fact and law and therefore, these questions should be decided as preliminary issues or along with other issues. ( 3. The plaintiffs opposed the application and contended that question of resjudicata and limitation on the facts of the present case were mixed questions of fact and law and therefore, these questions should be decided as preliminary issues or along with other issues. ( 3. ) The trial Court after hearing the parties came to the conclusion that for disposal of an application filed under order 7 Rule 11 C.P.C the plaint allegations only are to be seen and for purposes of application of principles of resjudicata which would a question of fact and law, the parties should be given appropriate opportunity and only thereafter the issue should be decided. ( 4. ) The defendants no. 1 to 3 have come to this Court with the submissions that the trial Court was absolutely unjustified in continuing with the suit less realizing that the trustees would have no independent rights, in a matter of a public trust. If the public trust itself has lost in the litigation then the trustees cannot claim independent rights because they claim through the Trust only. It was also submitted that if the documents are indisputable and incontrovertible then in light of the said documents and in view of the earlier judgments delivered by the Civil Courts and High Court in favour of the present petitioners, the present suit could not be continued. It was however, also submitted that a perusal of the plaint would show that the plaintiffs are claiming the relief as referred to above but they have not chosen to join the Trust as party plaintiff probably because the plaintiff knew that if the Trust was joined as a party then the plaintiffs will have to seek a declaration that the earlier judgments is not binding upon the trust. It was also submitted that the suit prima facie is not maintainable because any decree passed in the present suit would run contrary to the earlier decree passed by the High Court. It was also submitted that in cases of the present nature the Court has to nip in the bud so that infructuous, malicious and misconceived suits are dismissed at the threshold. ( 5. ) Shri R.K. Verma, learned counsel for the respondents no. It was also submitted that in cases of the present nature the Court has to nip in the bud so that infructuous, malicious and misconceived suits are dismissed at the threshold. ( 5. ) Shri R.K. Verma, learned counsel for the respondents no. I to 3 submitted that in the earlier suit the gift deed was not filed, probably the other trustee who was looking after the management of the Trust had joined hands with the present petitioners that in the earlier suit the sale deeds were also challenged but because the copy of the trust deed was not filed the Trust could not secure anything. It was also contended that a collusion between the erstwhile trustee viz. Bal Krishna Agrawal and the present petitioners is apparent because the said Bal Krishna Agrawal did not make appropriate efforts for tracing the trust deed or file certified copy of the same with the Court. To get rid of the argument of Shri Pancholi, learned counsel for the petitioners, it was contended that an application filed under Order 7 Rule 11 C.P.C has to be decided on the strength of the plaint averments and not on basis of the defences raised by the defendants. For application of principles of resjudicata it was contended that unless the evidence is recorded and facts are brought on the record the question of resjudicata cannot be decided by the Court. Making a passing reference to Rule 2 of Order 14 of the Code of Civil Procedure, it was contended that if the facts are indisputable and incontrovertible then too such issue cannot be decided as a preliminary issue because the issue relating to resjudicata cannot be decided at a stage like present. It was also submitted that the present petition under Article 227 of the Constitution of India is not maintainable because if the relief prayed for by the petitioners are granted, the suit of the respondents no. 1 to 3 would terminate and under the circumstances the petitioners should have filed a Civil Revision under Section 115 C.P.C. It was also contended that the Court below was not unjustified in deferring the decision on the questions raised in the separate applications filed by the parties. ( 6. 1 to 3 would terminate and under the circumstances the petitioners should have filed a Civil Revision under Section 115 C.P.C. It was also contended that the Court below was not unjustified in deferring the decision on the questions raised in the separate applications filed by the parties. ( 6. ) Shri Verma, learned counsel for the respondents no.1 to 3 lastly contended that present is not the stage where the High Court is required to interfere in the matter. He prays for dismissal of the petition. ( 7. ) We have heard the parties at length and have gone through the documents appended to the petition and filed along with the application dated 5.4.2010. ( 8. ) To put the facts straight it would be necessary to observe that Pinjra Pole Goushala Charitable Registered Public Trust through its erstwhile President Shri Bal Krishna Agrawal had filed a civil suit on 26.3.1996. The said suit was renumbered as Civil Suit No. 171-A of 2001 and was finally decreed by the IXth Civil Judge, Class I, Jabalpur holding that the trust was the owner of the property, the present petitioners had no right, title or interest in the property. The Court also observed that the mutation order passed by the Naib Tahsildar, Jabalpur was contrary to law, the property in dispute belonged to the plaintiff/trust and an injunction was also granted against all the defendants. ( 9. ) From the records it also appears that the five defendants of the said suit had filed Civil Appeal No.39-A/2004 which was finally disposed of by the learned XII th Additional District Judge, Fast Track Court, Jabalpur on 18.3.2005. The first appellate Court came to the conclusion that the said plaintiff could not prove that Rai Bahadur P.C. Bose had the authority to gift the property, in absence of production of the gift deed the gift was not proved, the plaintiffs were not in possession of the property and that the order passed by the Naib Tahsildar was absolutely justified. The learned First Appellate Court dismissed the suit. ( 10. ) It is not in dispute that against the said judgment and decree passed by the learned First Appellate Court said Pinjra Pole Goushala Charitable Registered Public Trust filed Second Appeal No.479/2005, the appeal was dismissed on 30.11.2006. The learned First Appellate Court dismissed the suit. ( 10. ) It is not in dispute that against the said judgment and decree passed by the learned First Appellate Court said Pinjra Pole Goushala Charitable Registered Public Trust filed Second Appeal No.479/2005, the appeal was dismissed on 30.11.2006. The learned single Judge of this Court had observed that the plaintiffs witnesses admitted that the gift was executed in writing but the document of gift was not filed. The Court also observed that another requirement for a valid gift was acceptance of the gift. The learned single Judge observed that there was no evidence on the record that the possession was delivered or the gift was accepted. The learned single Judge also observed that when the evidence which could be produced but is not produced, the inference would be that if it is produced it will go against the interest of the party withholding it. The learned single Judge observed that the said plaintiffs also failed in proving acquisition of right by adverse possession. The High Court confirmed the finding recorded by the two Courts that the plaintiff/trust was not in possession of the suit property. In light of the said findings the High Court after a long drawn litigation of 10 years dismissed the plaintiffs suit. Undisputedly S.L.P against the judgment of the High Court was dismissed as barred by limitation. ( 11. ) At this stage, we would be justified in observing that for the said Trust the judgment delivered by the four Courts have become final. The judgment delivered in the earlier suit cannot now be challenged by the Trust and if the Trust cannot challenge the earlier judgment which has attained finality any person claiming through the Trust in our considered opinion cannot be allowed to challenge the correctness, validity and propriety of the said judgments. ( 12. ) It is also not in dispute before us that one B.K.Tiwari had filed Public Interest Litigation Writ Petition No.6195/2007. The said petition came to be dismissed on 4.2.2008. It is to be noted that Pinjra Pole Goushala Charitable Registered Public Trust was made respondent no. 1 and was represented by Shri B.K. Agrawal, the person who had filed the earlier suit. The said petition came to be dismissed on 4.2.2008. It is to be noted that Pinjra Pole Goushala Charitable Registered Public Trust was made respondent no. 1 and was represented by Shri B.K. Agrawal, the person who had filed the earlier suit. The High Court while dismissing the Public Interest Litigation held that the public interest litigation was misconceived and at the instance of the petitioner who does not have any interest in the trust such petition could not be maintained. ( 13. ) It would be noteworthy that the Division Bench while dismissing the Public Interest Litigation observed that refusal on the part of the High Court to entertain the petition at the instance of the said petitioner will not be a bar for the respondent no. 1 (the trust) to pursue its remedies available under the law against the judgment and decree dated 30.11.2006 passed in Second Appeal No.479/2005. No liberty was reserved in favour of any trustee. To pursue the remedies against the said judgment and decree passed in Second Appeal No.479/2005 if no liberty was reserved in favour of the trustees or the present respondent no. 1/plaintiffs then the trust should have come forward and should have taken some action. ( 14. ) It would be necessary to see that the present suit has been filed by Arun Kumar Vasudeo, Dulichand Bhai Palan and Purshottam Sanghi caiming themselves to be trustees of the public trust. Shri R.K. Verma, learned counsel for the respondents no. 1 to 3, on a question put by the Court as to why the trust was not joined as party was at pains to give reply from the side of the plaintiffs. If the trustees are claiming any relief that too for and on behalf of the Trust then such Trust had to be joined as party plaintiff. According to Shri Verma because of collusion in the earlier suit the documents were not filed therefore, the said judgment would not operate as resjudicata, however and unfortunately the present trustees have no where pleaded that the earlier suit filed in the name of trust and fought by Bal Krishna Agrawal was dismissed as a result of collusion and, therefore the said judgment does not bind the trust. Even as on today such relief cannot be claimed by the Trust. Even as on today such relief cannot be claimed by the Trust. In so far as the question relating to non-filing of the gift deed in the earlier proceedings is concerned the Trust after being joined as party in the Public Interest Litigation could at least obtain copy of the trust deed and produce the same before the appropriate authority. Unfortunately the Trust is not coming forward to do anything and the trustees who are claiming from and under the authority of the trust are trying to blow their trumpet by saying that but for the plaintiffs all others were dishonest. We are unable to accept the contention raised by Shri R.K. Verma that the earlier suit was dismissed as a result of collusion. ( 15. ) If the present suit is held to be maint?nable at the instance of some of the trustees and is finally dismissed then some day or the other some other trustee without joining the trust would again come to the Civil Court and would start blowing their trumpet that present set of the trustee was also dishonest. After all litigation has to come to an end. The Court has to nip at the bud and tell the parties that after all enough is enough. The parties cannot be allowed to litigate unnecessarily and in perpetuity. ( 16. ) It is to be seen that provisions of Section 11 of the Code of Civil Procedure would apply not only to the parties who were litigating earlier but, it shall apply to a case where the present dispute in the earlier suit was directly and substantially in issue, it was between the same party or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit. In such matter subsequent suit would be barred because of the findings in the earlier suit and the suit has been disposed of or decided in favour of or against some party. Undisputedly the earlier suit was filed by the Trust. The present plaintiffs are not claiming independently or in their personal rights. They are claiming under the Trust which on an earlier occasion had filed the suit and lost. The phrase "between the parties under whom they or any of them claim" is not an empty formality. Undisputedly the earlier suit was filed by the Trust. The present plaintiffs are not claiming independently or in their personal rights. They are claiming under the Trust which on an earlier occasion had filed the suit and lost. The phrase "between the parties under whom they or any of them claim" is not an empty formality. If the earlier suit was between same parties and it had come to its concluding end then any person claiming under that party which had earlier lost would not be allowed to raise the pleas or the issues which have already been decided by the earlier Courts. In the earlier suits if the question of title, execution of the gift deed and competence of Rai Bahadur P.C. Bose in executing the gift deed was directly in issue and the Courts decided the said issue against the trust. If the said issues now cannot be raised by the said trust then any person claiming under the trust now cannot file the suit. ( 17. ) At this stage it would also be necessary to refer to the definition of a trust as given under Section 2(7) of Madhya Pradesh Public Trust Act, 1951. According to the said clause "Trustee" means a person in whom either alone or in association with other persons, the trust property is vested and includes a manager. ( 18. ) In the earlier suit Bal Krishna Agrawal claiming himself to be the President of the Trust had filed the suit, the maintainability of the suit was upheld by the Courts because the Managing Trustee/working trustee or the President of the Trust could certainly file a suit for and on behalf of the public trust. ( 19. ) In so far as Shri Vermas argument relating to Order 7 Rule 11 C.P.C is concerned, true it is that while deciding an application filed under Order 7 Rule 11 C.P.C the Court only has to see the pleadings in the plaint but at the same time it cannot be lost sight of that if on the given facts rather admitted facts the suit appears to be barred under some law that is on application of principles of resjudicata then the Court would be entitled to dismiss the suit applying the provisions contained under Order 7 Rule 11 ( c) of the Code of Civil Procedure. Yet another argument that petition under Article 227 of the Constitution of India is not maintainable is only to be mentioned for its rejection. There are two questions before us one whether application under Order 7 Rule 11 could be rejected at the threshold or could the suit be dismissed because of the bar of resjudicata. True it is that a revision against such order could be maintained but there would be no bar against the High Court for exercising its jurisdiction under Article 227 of the Constitution of India. The High Court has to exercise its powers under Article 226/227 of the Constitution of India and it has to strike with the sword of its power against each and every illegality where ever it is and when ever it is brought to the notice of the Court. ( 20. ) Taking into consideration the totality of the circumstances and the undisputed facts, we are of the opinion that the learned Court below was absolutely unjustified in deferring the decision on the question of maintainability of the suit and application of principles of resjudicata. ( 21. ) For the reasons aforesaid, we hold that the suit of the plaintiff is barred under Section 11 of the Code of Civil Procedure and is also not maintainable because of the bar contained under Order 7 Rule 11 C.P.C. ( 22. ) The suit being not maintainable deserves to and is accordingly dismissed. ( 23. ) The petition filed by the petitioners is allowed however, there shall be no order as to costs. Petition allowed.