JUDGMENT As per Hon'ble Shri Abhay Manohar Sapre, J. :- 1. Heard. 2. This is a second appeal filed by the defendant under Section 100 of the C.P. Code against the judgment and decree dated 17th of August 1993 passed by Second Additional District Judge, Raigarh in Civil Appeal No.34-A/1987, which in turn arise out of judgment and decree dated 6th of November 1987 passed by Third Civil Judge Class-II, Raigarh in Civil Suit No. 1-A/1986. 3. By the impugned judgment and decree, the First Appellate Court reversed the judgment and decree of the trial Court and decreed plaintiff's suit which was dismissed by the trial Court. 4. So the question that arises for consideration in this appeal is whether the Lower Appellate Court was justified in reversing the judgment and decree of the trial Court and thereby, justified in decreeing plaintiff's claim made in the suit against the defendant in relation to the suit property ? 5. This second appeal was admitted for final hearing on following substantial questions of law : "(1) Whether the First Appellate Court was right in reversing the findings of the trial Court on the issue of alleged partition of the properties and holding that the judgment and decree dated 17.10.1963 in Civil Suit No.38-A/60 (Ex.P/7) would operate as res judicata between the parties, even though there is no plea of res-judicata raised by the parties? (2) Whether the suit is within limitation?" 6. Looking to the question involved in the appeal and the same being purely legal in nature, it may not be necessary to narrate the factual details of the case in more details except to mention the facts to answer the question framed. 7. In a suit filed by the plaintiffs (respondents herein) against the defendants (appellants), out of which this appeal arises, the plaintiffs sought a declaration of their 1/3rd share in the suit properties with the defendants claiming the suit properties to be the joint Hindu family properties of which they claimed to be one of the co-coparceners along with defendants. They also sought joint possession in the suit properties along with defendants in the suit land. 8. The defendants while denying the plaintiff's claim prayed for their exclusive possession over the suit land. 9. They also sought joint possession in the suit properties along with defendants in the suit land. 8. The defendants while denying the plaintiff's claim prayed for their exclusive possession over the suit land. 9. The trial Court framed following issues arising out of the pleadings : 1- D;k oknxzLr laifRr oknh rFkk izfroknh ds la;qDr gk¡ ifjokj dh la;qDr laifRr gS\ 2- D;k izfroknh dh 24-45 ,dM+ Hkwfe ij dsoy mldk gk¡ gh gd gS rFkk mldk gh dCtk gS\ ;fn gk¡ rks izHkko\ 3- D;k oknh dk oknxzLr laifRr ij izfroknh ds lkFk fl) ugha la;qDr dCtk gS\ 4- D;k oknxzLr Hkwfe ij oknh dk dCtk ugh\ ;fn gks okn pyus ;ksX; gS rks D;k dCtk izkIr djus dh lgk;rk ekaxs fcuk ;g okn pyus ;ksX; ugh gS\ 5- lgk;rk ,oa O;;A oknh dk okn lO;; fujLr 6- D;k i{kdkjksa ds chp lu~ 1956 esa ekSf[kd caVokjk gk¡ caVokjk fl) gqvk gS vkSj rc ls i{kdkj vius vius fgLls ij dkfct gS ;fn gka rks izHkko\ 7- D;k vuqfoHkkxh; vf/kdkjh ds vkns’k ds rhu o”kZ ds gk¡ vanj is’k u fd;s tkus ds dkj.k ;g okn cs:E;kn gS\ 8- D;k HkkxhjFkh] vfHk] fnys’oj] vkSj mnsjke bl izdj.k esa gk¡ okn pyus ;ksX; ugha vko’;d i{kdkj gS\ ;fn gka rks izHkko 10. The trial Court dismissed the suit. The plaintiffs filed First Appeal before the District Judge. The learned First Appellate Judge allowed the appeal and while reversing the judgment and decree passed by the trial Court, decreed the suit. In para 16, the learned Appellate Judge held that the case in hand is covered by one judgment earlier given between the same parties about the land in question in one civil suit and hence, it would operate as res judicata while determining the rights of the parties in this suit. This finding was used by the First Appellate Court for reversing the judgment and decree passed by the trial Court and decreeing plaintiff's suit against the defendants. In other words, the issue of res judicata was decided against the defendants for decreeing plaintiff's suit against the defendants, which has now given rise to filing of this appeal by the defendants. 11. It is apposite to quote para 16 of the impugned judgment which recorded this finding. In other words, the issue of res judicata was decided against the defendants for decreeing plaintiff's suit against the defendants, which has now given rise to filing of this appeal by the defendants. 11. It is apposite to quote para 16 of the impugned judgment which recorded this finding. ^^16- ;g Bhd gS fd e`r cyjke dk O;ogkj okn dz- 3v 1960 esa ;g izdj.k Fkk fd caVokjk gks pqdk gS ijarq tc ;g iz’u vafre :i ls fujkd`r dj fn;k x;k fd caVokjk ugha gqvk gS rc mlds le{k mlds flok; dksbZ jkLrk ugha Fkk fd og rglhynkj ds U;k;ky; esa caVokjk djkus ds fy;s vkosnu i= nsA mHk; i{kksa ds chp fof/k dh n`f”V esa ;g fcanq vc jsldw twfMdsVk gS fd muds la;qDr fgUnq ifjokj dk caVokjk ugha gqvk gS blfy;s oknhx.k rduhdh :i ls leLr laifRr ij la;qDr :i ls vf/kdkjh gSA vfHkys[k ij vkgZ lk{; ls ;g Hkh yxrk gS fd i{kdkj vyx&vyx tehuksa ij dk’r dj jgs gSaA [kkrk mudk ,d gS og vyx ugha gks ldk gSA fookn ds lEid fujkdj.k ds fy;s mRrjoknh dz-&1 Nchyksa dks ;g pkfg;s fd og caVokjs ds fy;s fof/kd dk;Zokgh djsA bl caVokjs dh dk;Zokgh esa ;g /;ku j[kk tk ldrk gS fd ftu tehuksa ij i{kdkj dk’r dj jgs gSa ;k mUgksaus tks tehu csp nh gS os muds fgLls esa djus dk iz;Ru fd;k tk;sA^^ 12. Placing reliance on the decision of the Supreme Court V. Rajeshwar (Smt.) Vs. T.C. Saravanabava, 2004(1) SCC 551 the learned counsel for the appellant contended that the First Appellate Court erred in reversing the judgment and decree of the trial Court on the ground that one earlier judgment between the parties operates as res judicata. According to him, firstly it was nobody's case, much less of the defendants, secondly, there was no pleading, no issue and no finding by the trial Court. It was urged that in the absence of any pleading, issue and finding by the trial Court, the First Appellate Court had no jurisdiction to took up the issue of res judicata of his own for deciding the suit in plaintiff's favour which was rightly dismissed by the trial Court on other grounds. It was urged that in the absence of any pleading, issue and finding by the trial Court, the First Appellate Court had no jurisdiction to took up the issue of res judicata of his own for deciding the suit in plaintiff's favour which was rightly dismissed by the trial Court on other grounds. His submission was that the decision cited at the bar completely supports his submission and hence, this Court should answer the question framed in appellants, favour and while allowing the appeal, set-aside the impugned judgment and restore that of the judgment and decree passed by the trial Court. 13. In reply, the learned counsel for the respondents supported the impugned judgment and decree. 14. Having heard the learned counsel for the parties and on perusal of the record of the case, I find force in the submission of the learned counsel for the appellant and hence, allow the appeal and while answering the question framed in appellants favour, set-aside the impugned judgment and decree passed by the First Appellate Court and restore that of the trial Court. 15. In his distinctive style of writing, the learned Judge R.C. Lahoti (as his Lordship then was and later became CJI), explained the object, scope, purport of res judicata as defined under section 11 of C.P. Code and how it is required to be raised by the parties and then to be dealt with by the Courts. It is apposite to quote in verbatim the law laid down in para 11 to 14 infra. 11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause. 12. The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. 12. The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal [see (Raja) Jagadish Chandra Deo Dhabal Deb v. Gour Hari Mahato, AIR 1936 PC 258 : 1936 All LR 786, Medapati Surayya v. Tondapu Bala Gangadhara Ramakrishna Reddi, AIR 1948 PC 3 : (1947) 2 MLJ 511 and Katragadda China Anjaneyulu v. Kattaragadda China Ramayya, AIR 1965 AP 177 : (1965) 1 An LT 149 (FB)]. The view taken by the Privy Council was cited with approval before this Court in State of Punjab v. Bua Das Kaushal, (1970) 3 SCC 656 . However, an exception was carved out by this Court and the plea was permitted to be raised, through not taken in the pleadings nor covered by any issue, because the necessary facts were present to the mind of the parties and were gone into by the trial court. The opposite party had ample opportunity of leading the evidence in rebuttal of the plea. The Court concluded that the point of res judicata had throughout been in consideration and discussion and so the want of pleadings or plea of waiver of res judicata cannot be allowed to be urged. 13. Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. Maybe, in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai v. Mohd Hanifa, (1976) 4 SCC 780 the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. Salie Labbai v. Mohd Hanifa, (1976) 4 SCC 780 the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh v. Bhooralal, AIR 1964 SC 1810 : ( 1964 7 SCR 831 ) placing on a par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy., of State for India in Council (1887-88) 15 IA 186: ILR 16 Cat 173 pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit. 14. That apart, the plea, depending on the facts of a given case, is capable of being waived, if not properly raised at an appropriate stage and in an appropriate manner. The party adversely affected by the plea of res judicata may proceed on an assumption that his opponent had waived the plea by his failure to raise the same. 14. That apart, the plea, depending on the facts of a given case, is capable of being waived, if not properly raised at an appropriate stage and in an appropriate manner. The party adversely affected by the plea of res judicata may proceed on an assumption that his opponent had waived the plea by his failure to raise the same. Reference may be had to Pritam Kaur v. State of Pepsu, AIR 1963 Punj 9 : 64 Punj LR 782 (FB) and Rajani Kumar Mitra v. Ajmaddin Bhuiya, AIR 1929 Cal 163 : 48 Cal LJ 577, and we find ourselves in agreement with the view taken therein on this point. The Privy Council decision in Sha Shivraj Gopalji v. Edappakath Ayissa Bi, AIR 1949 PC 302: (1949) 2 MLJ 493 appears to have taken a different view but that is not so. The plea of res judicata was raised in the trial Court; however, it was not pressed but it was sought to be reiterated at the stage of second appeal. Their Lordships held that being a pure plea in law it was available to the appellant for being raised. Their Lordships were also of the opinion that in the facts of that case, a part from the principle of res judicata, it was unfair to renew the same plaint in fresh proceedings. The Privy Council decision is distinguishable. 16. Reverting back to the facts of the case and applying the aforementioned principle to the facts of the case in hand, I have no hesitation in holding that the First Appellate Court committed an error of jurisdiction while suo mota invoking and applying the principles of res judicata to the facts of this case in para 16 of the impugned judgment for reversing the judgment and decree of the trial Court when admittedly the issue of res judicata was not raised by any party at any stage of the case. I also find that there were no pleading and nor any issue framed much less any finding given by the trial Court on such issue. In this view of the matter, there was no occasion for the First Appellate Court to have rested its finding for reversal of judgment of the trial Court on the issue of res judicata of its own. In this view of the matter, there was no occasion for the First Appellate Court to have rested its finding for reversal of judgment of the trial Court on the issue of res judicata of its own. In other words, the issue of res judicata had to be first raised by the parties in their pleading to enable the Court to frame issues provided parties file the copy of plaint, written statement and judgment deciding such issue. It is only then the Court gets jurisdiction to answer the issue of res judicata on its merits else not. The Court could not suo mota find out the issue of res judicata on the basis of one judgment and answer it in favour of one party and against the other unless the party in a particular case had either agreed or when Court made them aware of such question or when all material to answer such issue was on record in the form of pleading and documents to enable the Court to decide. In this case, it did cause prejudice to the defendants because the plaintiff did not raise this issue in the plaint and nor called upon the trial Court to frame issue on such matter. In these circumstances, there was no occasion for the First Appellate Court to have taken up this issue and answered it against the appellant. It is for all these reasons; I am of the view that finding of the Lower Appellate Court is not legally sustainable and hence, deserves to be set-aside. 17. In the light of foregoing discussion, it is not necessary for me to go into any other findings of the Courts below because no substantial question of law has been framed on any such finding of the Lower Appellate Court except on the issue of res judicata and the same once answered in appellant's favour, I cannot examine the legality of other issues for want of a substantial question of law. 18. Once I set-aside the finding of res judicata in favour of the appellant and hold that First Appellate Court was not right in so recording, then, I have no option but to set-aside the impugned judgment and decree passed by the First Appellate Court and restore that of the trial Court. 19. As a consequence of foregoing discussion, the appeal succeeds and is allowed. 19. As a consequence of foregoing discussion, the appeal succeeds and is allowed. Impugned judgment and decree is set-aside and that of the trial Court restored. 20. No cost. Appeal Allowed.