JUDGMENT A. H. JOSHI, J. 1. In the midst of hearing it is noticed that the appeal can be disposed of finally on limited question of law. Therefore, Admit. 2. Respective Advocate agree for final disposal. Therefore, the appeal is taken up for final hearing. 3. Union of India filed suit seeking various reliefs which are in the nature of declaration and injunction. 4. The suit is based on title to suit property received by the Plaintiff through various proceedings for acquisition under the Land Acquisition Act. The declaratory relief that no area of land is parcel of suit survey number is left with defendants in suit is based on an analogy that no land was left with original owner in the plan of suit survey No.103-A annexed to the plaint, due to various acquisitions and parting of land by original land owner. 5. It is seen that the suit was resisted on various grounds ultimately by discussion and reasons contained in the judgment it has been partly decreed to the extent of prayer clause (c) covering 60 acres and 38 gunthas of plot of land on Survey No.103-A in part. The suit has been dismissed as regards prayer clause (a) and (b) therein as to declaration that defendants have ceased to have any land of their ownership in the suit survey number. 6. The learned Judge, City Civil Court, Mumbai held that the issue involved in the suit was already decided in the earlier suit between same parties and hence it was case covered by principle of res-judicata. This finding is seen in paragraph 42 of the judgment. 7. The ground raised in this appeal, interalia is that the plea of res-judicata that the declaratory relief was based on findings recorded in earlier suit was not incorporated in the plaint. This plea was rather raised in the written arguments and hence basing the impugned judgment and decree thereon is not based on adjudication, in accordance with law, as the defendants did not get reasonable and fair opportunity to meet said foundation of claim. 8. In order to test the ground raised, this court has perused the pleadings and written arguments too. A specific pleading about resjudicata is not seen in the plaint. Perusal of written arguments which is on record at Page 30 it reveals that in paragraph 31 onwards the plea of res-judicata is agitated in clear words. 8. In order to test the ground raised, this court has perused the pleadings and written arguments too. A specific pleading about resjudicata is not seen in the plaint. Perusal of written arguments which is on record at Page 30 it reveals that in paragraph 31 onwards the plea of res-judicata is agitated in clear words. 9. Had the plea of Res-judicata been recorded in the plaint in an eloquent manner, it could have been decided by the court qua the points involved in the suit. In that event said issue could/should have been decided first in sequence and thereafter if necessary the court could have proceeded to decide the issues requiring fact finding if any. 10. It is not in dispute that the plea of res-judicata or on the line of underlining principles of res-judicata was not raised, in the plaint. Therefore, it has resulted into denial of reasonable and fair opportunity to both the parties to address all issues involved in suit in an ordered manner and then to finally decide the suit. 11. In result it is seen that it is necessary to set aside impugned judgment and decree and remand the suit to the trial Court. 12. In the result appeal is partly allowed in following terms :- (A) The judgment and decree passed in suit No.4150 of 2005 dated 9/11/2011 is set aside and the suit is remanded to the Judge, City Civil Court, Mumbai. (B) It would be open to the plaintiff to carry out necessary amendment in the plaint and plaintiff to incorporate the plea of res-judicata by tendering proper application/motion for that purpose. (C) The defendants will be free to amend the written statement. The court would thereafter, first decide after framing additional issue or issues and decide as to which amongst the issues are not open for further hearing and decision, in view of decision on issue in earlier suit and whether further adjudication is barred. (D) Thereafter, the court may proceed to hear and decide remaining of issues by giving parties further opportunity on the basis of evidence already on record or in the manner as may be decided by the court. (E) In the circumstances the costs as ultimately decided in the suit. (F) Appeal is accordingly allowed in terms of aforesaid clauses. 13. Civil applications are also disposed of.