JUDGMENT : 1. This appeal is filed by the defendant challenging the judgment and decree dated 14.08.2012 passed by the Senior Civil Judge, Shorapur in R.A. No. 11/2011. 2. The parties are referred to as per their ranking before the Court below. 3. The brief facts of the case are as under: Plaintiff is the owner of the suit land bearing Sy. Nos. 12/1 and 12/5 measuring 1 acres 38 guntas and 2 acres 12 guntas respectively situated in Sugur villlage of Sorapur taluk. It is the further case of the plaintiff that she has inherited the suit lands from her mother Maremma. Defendant has no right, title or interest over the suit lands. He has illegally dispossessed the plaintiff from suit lands and got his name entered into the revenue records. Hence, the plaintiff has filed O.S. No. 16/2007 against the defendant for declaration and injunction. The same came to be dismissed. Being aggrieved by the same, the plaintiff has filed R.A. No. 3/2018 before the First Appellate Court. The First Appellate Court by its judgment and decree has dismissed the suit and confirmed the judgment and decree passed in O.S. No. 16/2007. The judgment and decree attained finality. Subsequently, the plaintiff has filed this suit against the defendant for possession and injunction. 4. On service of summons, the defendant has filed a detailed written statement denied the entire plaint averments. It is further contended that plaintiff is not an owner of the suit schedule property. Earlier suit filed by the plaintiff in O.S. No. 16/2007 against the defendant for declaration and injunction was dismissed. Hence, the present suit filed by the plaintiff is barred by principle of res judicata. On the basis of the above pleadings, the trial Court framed the following issues: 1. Whether the plaintiff proves that she is the absolute owner of suit property? 2. Whether the plaintiff proves that the mutation of suit property in the name of defendant is illegal? 3. Whether the plaintiff proves the alleged interference by the defendant? 4. Whether the plaintiff is entitled for relief sought as in the pliant? 5. Whether the defendant proves that, his title and possession over the suit property is preferred by way of adverse possession? 6. Whether the suit is barred by limitation? 7. What order or decree? Additional Issue: 1. Whether the principle of res judicata applies to the suit? 5. Whether the plaintiff is entitled for relief sought as in the pliant? 5. Whether the defendant proves that, his title and possession over the suit property is preferred by way of adverse possession? 6. Whether the suit is barred by limitation? 7. What order or decree? Additional Issue: 1. Whether the principle of res judicata applies to the suit? 5. The trial Court treated the additional issue as preliminary issue. After hearing the arguments of both sides, the trial Court has dismissed the suit of the plaintiff is barred by principle of res judicata. Being aggrieved by the judgment and decree passed by the trial Court in O.S. No. 164/2009 dated 28.03.2011 the plaintiff has filed appeal in R.A. No. 11/2011 before the Senior Civil Judge, Sorapur. The first appellate Court on the basis of the pleadings of the parties, has framed the following points for consideration: 1. Whether the trial Court is justified in holding that the suit is barred by principle of res judicata without recording the evidence of the parties of the suit? 2. Whether judgment and decree passed by trial Court is sustainable in law? 3. What order? 6. On the basis of the documentary evidence and submission of the counsel for the parties, the appellate Court has allowed the appeal and remitted the matter back to the trial Court for fresh disposal in accordance with law. Being aggrieved by the same, the defendant has filed this miscellaneous second appeal under Order XLIII Rule (1) (u) of CPC challenging the judgment and decree passed by the first appellate Court in R.A. No. 11/2011. 7. Sri J. Augustin, learned counsel for the appellant submits that the plaintiff has earlier filed a suit in O.S. No. 16/2007 for declaration and injunction in respect of very same property between the same parties has been dismissed. Against that he has filed an appeal in R.A. No. 3/2008, same came to be dismissed and attained finality. Now the plaintiff has filed suit for possession and injunction in respect of very same property. It is barred by res judicata. The trial Court has considered the pleading of the parties has rightly dismissed the suit. The first appellate Court has committed an error in allowing the appeal and remanding the matter to the trial Court for fresh consideration. 8. It is barred by res judicata. The trial Court has considered the pleading of the parties has rightly dismissed the suit. The first appellate Court has committed an error in allowing the appeal and remanding the matter to the trial Court for fresh consideration. 8. Per contra, Sri R.S. Sidhapurkar, learned counsel appearing for plaintiff-respondent submits that the issue of principle of res judicata is mixed question of law and fact. The trial Court without conducting the trial, only on the basis of the pleadings of the parties has dismissed the suit. The first appellate Court has rightly considered the contentions of the parties and remanded the matter back to the trial Court for fresh consideration in accordance with law. Therefore, he sought for dismissal of the appeal. 9. Heard the learned counsel for the parties. 10. It is not in dispute that plaintiff has filed O.S. No. 16/2007 against the defendant for declaration and injunction. It was dismissed as barred by limitation. Against that judgment and decree the plaintiff has filed appeal before the appellate Court in R.A. No. 3/2008, which came to be dismissed. The judgment and decree has attained finality. Subsequently, the plaintiff has filed a suit against the defendant for possession and injunction in O.S. No. 164/2009. On service of summons, the defendant has filed written statement and has taken contention that suit is barred by res judicata. 11. Res judicata is a mixed question of law and fact to decide that issue recording of evidence of the parties is essential. For better understanding the provisions of Order XIV Rule 2 of Code of Civil Procedure is extracted below: “Court to pronounce judgment on all issues: (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-Rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to: (a) the jurisdiction of the Court. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to: (a) the jurisdiction of the Court. (b) a bar to the suit created by any law for the time being in force, and for that purpose may, it thinks fit postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.” 12. From the above said provision it is clear that the Court can dispose of the case by treating the issue of law as a preliminary issue relating to jurisdiction of Court or bar of suit created by any law. That means, issue relating to law in respect of jurisdiction of Court and bar of suit created by any law can be treated as preliminary issue and can be dispose of the suit without recording the evidence of parties. If the issue relating to both law and fact cannot be decided as preliminary issue without recording the evidence of the parties in view of the provision of order XIV Rule 2 of CPC. Since principle of res judicata is a mixed question of fact and law the trial Court has to record the evidence before deciding the issue. 13. 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. 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. 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. The principles of res judicata is the question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but the said question can not be determined without recording the evidence. My view is fortified by the judgment of the Hon’ble Apex Court judgment in the case of Vaish Aggarwal Panchayat vs. Inder Kumar and Others, AIR 2015 SC 3357 has held as follows: “Res judicata involves mixed question of law and fact, requires not only examination of plaint but also other evidence – It cannot as such be a ground to reject plaint.” 14. In view of above, the trial Court is not legally justified in dismissing the suit without recording the evidence of the parties in respect of principle of res judicata. The first appellate Court has rightly remanded the matter to the trial Court for fresh consideration in accordance with law. Therefore, decline to interfere with the judgment and decree of the first appellate Court passed in R.A. No. 11/2011. 15. Accordingly, the appeal is dismissed.