ORDER : (PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE) 1.0. This is an appeal filed by the original plaintiffs under Section 96 of the Code of Civil Procedure, 1908, challenging the impugned judgment and order dated 25.09.2018 passed below Exh.1 by the learned 6th Additional Senior Judge, Surat in Special Civil Suit No.488 of 2010. By the said judgment and order, the learned Judge has dismissed the suit as being clearly barred by law in view of provision of Order 23 Rule 3 A r/w Section 11 of the Code. 2.0. In nutshell, the case of the original plaintiffs as pleaded in the plaint is reproduced herein under: 2.1. The dispute pertains to the land bearing revenue survey no.189 paiki admeasuring 5463 sq mtrs which is now reduced to city survey no.1091 in Town Planning Scheme No,6 (Majura- Katodara), original plot no.58-A which is given Final Plot No.140 (728 sq mtrs) and Plot No.141 (500 sq mtrs) (hereinafter referred to as the “suit land”). 2.2. One Nathubhai Laxmidas Aahir was the original owner of the suit land who expired on 15.09.1932 leaving behind his legal heirs and representatives which include his widow Vahliben Nathubhai and daughter Bhikhi Nathubhai. Their names were mutated in the revenue record vide mutation entry no.170 dated 2.10.1932. 2.3. The heirs of the original owner have entered into a registered sale deed of the suit land on 25.12.1948 in favour of Dahyabhai Mavabhai (Original plaintiff no.1), Chaganbhai Mavabhai (Original Plaintiff No.2) and Naranbhai Mavabhai (Original plaintiff no.3). The aforesaid sale transaction was noticed in the revenue record vide mutation entry no.390 dated 25.1.1949. Thus, the names of the original plaintiffs as joint owners of the suit property was evident from the revenue record. 2.4. It is the case of the plaintiffs that since the original defendant no.1 Abbasbhai Mohsinbhai Hajuri was interfering with the possession of the original plaintiffs in respect of suit land, they were required to issue public notice dated 3.7.2010 in the local newspapers. The said notice was objected by the original defendant by reply dated 5.7.2010, thereby, denying the allegations made in the said notice. The plaintiffs have, therefore, averred in the plaint that the cause of action had arose for the plaintiffs to approach the Civil Court to seek declaration as well as for recovery of possession and injunction in respect of the suit land. The plaintiffs have, therefore, averred in the plaint that the cause of action had arose for the plaintiffs to approach the Civil Court to seek declaration as well as for recovery of possession and injunction in respect of the suit land. The suit was filed on 20.10.2010 which was registered as Special Civil Suit No.488 of 2010. 2.5. The plaintiffs have sought for following prayers in the plaint: “1. It is prayed to get the plaintiff a vacant, peaceful and direct possession of the old tenure land situated at Majura, Taluka Surat City bearing R.S. No.189 paiki, area admeasuring 5463 sq.m. as per revenue record and assessment Rs.10-75 paisa from the defendants, registered vide City Survey No.1091 in the register of City Survey Majura Ward, pursuant to implementation of T.P. Scheme No.6 (Majura- Khatodara) which was allotted original plot No.58/A, F. Plot Nos.140 and 141 aggregating both these final plots 728.00 sq.m. and 500 sq.m. respectively. 2. It is prayed to get us the plaintiff the usage fee from the date of the suit till the possession is given at the rate of Rs.1,00,000/- (Rupees One Lakh Only) per month from the defendant. 3. It is prayed to pass a permanent injunction declaring that, the defendants of this suit are not entitled to sell, lease, gift or rent the land in question or any share of the same by agreement or assigning the same in any other way to any third party. Moreover, the defendants shall not transfer the land in question by lease, gift, rent, agreement or transfer the same in any other way to any third party person. Moreover, they shall not execute agreements by themselves or through their servants, agents, persons, attorneys etc. that would affect the ownership right of the plaintiffs in the land in question. Moreover, the defendants shall not transfer or assign the possession of the land in question to any third party by themselves or through their servants, agents, persons, attorney etc. and shall not do any excavation or construction in the land in question by themselves or through any labourer. Moreover, they shall not get the purpose of the land in question mutated nor shall get any permission for construction in the land in question from the Surat Municipal Corporation or from SUDA. 4. It is prayed to get the cost of this suit from the defendant.” 2.6. Moreover, they shall not get the purpose of the land in question mutated nor shall get any permission for construction in the land in question from the Surat Municipal Corporation or from SUDA. 4. It is prayed to get the cost of this suit from the defendant.” 2.6. In light of the aforesaid facts pleaded by the original plaintiffs and having perused the documents placed on record along with list produced with the plaint, the summons were issued upon the original defendant. The defendant no. 1 had appeared through his lawyer and had tendered his written statement at Exh.9. It transpires from the averment made in the written statement that the original plaintiffs have not approached the Court with clean hands inasmuch as they have failed to disclose the execution of two registered sale deeds dated 17.3.1989 in respect of suit land which was entered in the book of register maintained by the office of Sub-Registrar at serial nos.3329/89 (new number 7744/2000) and 3330 of 1989 executed in favour of Moyuzbhai Hohsinbhai Hajuri and Zuzarbhai Mohsinbhai Hajuri as well as in the name of Mohsinbhai Abdulrahim Hajuri respectively. It was averred in the written statement that the original plaintiffs have entered into registered sale deed on 18.08.1975 in respect of land admeasuring 1795.63 sq mtrs of the adjoining city survey no.1090 in favour of the aforesaid persons. Subsequently, an agreement to sell dated 21.08.1975 was executed by the original plaintiffs in respect of the suit land in favour of the aforesaid persons. Since the original plaintiffs have refused to execute the registered sale deed, the intending purchasers had approached the court by filing suit being Special Civil Suit No.164 of 1981 before the Court of learned Civil Judge, Surat seeking specific performance of the aforesaid agreement. It was averred that on 31.7.1987 the consent terms entered upon between the parties were placed on record of aforesaid civil suit and same was recorded by the Court. The suit was ultimately decreed in favour of the intending purchaser in terms of the consent terms arrived at between the parties. The decree was drawn as per the consent terms at Exh.38. By referring to the the aforesaid averment, the original defendant had objected to the maintainability of the suit itself. The original plaintiffs noticing the aforesaid averments belatedly after two years, moved an application for amendment at Exh.37 on 21.6.2013. The decree was drawn as per the consent terms at Exh.38. By referring to the the aforesaid averment, the original defendant had objected to the maintainability of the suit itself. The original plaintiffs noticing the aforesaid averments belatedly after two years, moved an application for amendment at Exh.37 on 21.6.2013. By such application, the original plaintiffs had prayed for impleading one Haiderbhai Mohsinbhai Hajuri as defendant no.2. The further prayer was sought for incorporating the amendment in the prayer clause. The prayer was sought for to challenge the sale deed dated 17.3.1989 alleged to have been executed by the power of attorney holder of the original plaintiffs in favour of Haiderbhai in respect of suit land. 2.7. It transpires from the record that learned Civil Judge upon hearing such application for amendment, came across the fact of consent decree passed in earlier suit being Special Civil Suit No.164 of 1981 filed between the same parties and with respect to same subject matter of. The trial Court was of the view that under the guise of the relief sought for recovery of possession, the original plaintiffs intended to challenge indirectly the consent decree. The trial Court was therefore, of the view to deal with issue of maintainability of the suit as preliminary issue, in view of the provisions of Order 14 Rule 2(2)(b) of the Code. The Court therefore, by order dated 09.07.2018 while not entertaining the application for amendment filed at Exh.37 further directed to decide the issue of maintainability of the suit first before going to other aspects of the suit. 2.8. The trial Court having framed the preliminary issue of maintainability of the suit, extensively heard the respective parties and had also considered the written submission filed on record. Upon appreciation of the record, more particularly, the parties involved in Special Civil Suit No.164 of 1981 as well as subject matter, arrived at a conclusion that indisputably there exist a consent decree between the parties based on which the sale deeds were executed. The Court also noticed the provision of Order 23 Rule 3 A of the Code of Civil Procedure clearly bar the suit seeking challenge to a decree on the ground that compromise on which decree was passed was not lawful. The Court also took into consideration Section 11 of the Code and thereby held that the suit was not sustainable in eye of law. The Court also took into consideration Section 11 of the Code and thereby held that the suit was not sustainable in eye of law. The Court therefore, by impugned judgment and order dated 25.9.2018 held that the suit was not maintainable and was therefore, rejected. Hence, this appeal at the instance of the original plaintiffs. 3.0. The present appeal was registered on 29.11.2019 after condoning the delay of 95 days by order dated 21.11.2019 passed by this Court in Civil Application No.2962 of 2019 in Filing First Appeal (F) No.10999 of 2019. The matter was though notified on the admission board, thereafter has not progressed so far. Today, when the matter was taken up for hearing, learned advocate Mr. Y. V. Vaghela has appeared on behalf of the appellants and Mr. Dhaval D Vyas, learned Senior Advocate has appeared on behalf of the respondent no.1- original defendant. 4.0. Learned counsel for the appellants, at the outset, has invited our attention to the impugned judgment and order passed below Exh.1 and had submitted that the trial Court committed serious error in dismissing the suit by treating the issue of maintainability of the suit as the preliminary issue. According to the learned counsel, looking to the averment made in the plaint and the amendment which the original plaintiffs intended to incorporate in the plaint, it was the specific case of the original plaintiffs that no such agreements were entered upon with the defendant. It is specifically pleaded that the defendant was claiming right over the suit property on the basis of forged and bogus document. Hence, according to learned counsel, learned Judge ought to have appreciated that there involved mixed question of facts and law and therefore, the suit was to be conducted by full-fledged trial. It was further submitted that no such application was in fact moved by the defendant raising issue of maintainability of the suit by raising the preliminary issue, the trial Court has curtailed the right of plaintiffs to lead proper evidence which has manifested into injustice. Learned advocate has therefore, urged to admit the appeal. 5.0. Mr.Dhaval Vyas, learned Senior Advocate with Mr. Dipen Sankheshara, learned advocate for the respondent, who had assisted the Court, has placed strong reliance upon the findings and reasons assigned by the learned Judge. Learned advocate has therefore, urged to admit the appeal. 5.0. Mr.Dhaval Vyas, learned Senior Advocate with Mr. Dipen Sankheshara, learned advocate for the respondent, who had assisted the Court, has placed strong reliance upon the findings and reasons assigned by the learned Judge. The attention of this Court was invited to the provision of Order 23 Rule 3 A as well as Section 11 of the Code. It is submitted that looking into the consent decree drawn in the earlier suit which was filed between the same parties and in respect of same subject matter of suit land, no error can be found with the approach of the learned Judge in framing the issue on maintainability of the suit in the peculiar facts of the case, as preliminary issue. He has, therefore, submitted that no error can be found in the impugned judgment and order of the learned trial Court and the present appeal does not requires admission and is required to be dismissed at the threshold. 6.0. Having heard the learned counsel for the respective parties and having perused the impugned judgment and order and the relevant documents placed for consideration on the record, we are in complete agreement with the reasons and findings assigned by the learned Judge. In the given facts of the case, indisputably the dispute in respect of the suit property was a subject matter in the earlier suit being Special Civil Suit No.164 of 1981 which was filed by the intending purchaser viz. Mohsinbhai Abdulrahim Hajuri, Haidarbhai Mohsinbhai Hajuri and Moyuzbhai Mohsinbhai Hajuri against defendants viz. Dahyabhai Mavabhai, Chaganbhai Mavabhai and Naranbhai Mavabhai. Thus, upon bare perusal of the cause title, it is evident that the ancestors of the present defendants have preferred Special Civil Suit No.164 of 1981 seeking specific performance based on an agreement to sell entered upon by the aforesaid defendants in respect the suit land. It is also not in dispute that the consent terms were drawn between the parties which were placed on record in the aforesaid Civil Suit. It is also not in dispute that based on such consent terms, compromise decree was drawn in the aforesaid civil suit. This brings us to the plea of res judicata as raised by the defendant in its written statement filed at Exh.9 in present civil suit. It is also not in dispute that based on such consent terms, compromise decree was drawn in the aforesaid civil suit. This brings us to the plea of res judicata as raised by the defendant in its written statement filed at Exh.9 in present civil suit. The issue of ownership right claim on the basis of agreement to sell was settled in view of the consent terms arrived between the same parties before a competent Court. In the present suit, though the original plaintiffs who were defendants in the earlier suit, have prayed for recovery of possession of the same subject property and an attempt has been made to challenge the sale deed which were otherwise executed following the consent terms drawn in the earlier suit, the trial Court had rightly taken up the issue of competency of the Court to decide such issue which otherwise shall operate as a res judicata in the subsequent suit. It is in this peculiar facts the Court had invoked the provision of Order 14 Rule 2(b). 7.0. The plain reading of Order 14 Rule 2 permits the Court to dispose of the case on preliminary issue, in light of a bar created by any law to the maintainability of such suit and further permits the Courts to postpone the settlement of other issue until and after that issue is determined. 8.0. As evident from the record, it is at the stage when the aforesaid facts were disclosed for the first time before the Court by the defendant in his written statement at Exh.9 and at the stage of dealing with application seeking amendment in the plaint, the trial Court has noticed the consent terms arrived at between the same parties or litigating under the same title in respect of same subject matter. Learned counsel for the appellants has disputed the approach of the learned Court in treating the issue of maintainability of the suit as preliminary issue by invoking provision of Order 14 Rule 2(b) by submitting that there involved mixed question of facts and law. In our view, the learned advocate for the appellants has failed to point out any disputed facts as regards to the earlier suit filed between the same parties in respect to subject matter. 9.0. This brings us to the issue of maintainability of the suit in the facts of the case. In our view, the learned advocate for the appellants has failed to point out any disputed facts as regards to the earlier suit filed between the same parties in respect to subject matter. 9.0. This brings us to the issue of maintainability of the suit in the facts of the case. In light of the undisputed facts of the consent terms arrived at between the parties in respect of subject matter and followed by the execution of the sale deeds. In light of Rule 3 A there was clear bar of second suit for recovery of possession and the attempt to challenge the sale deed and consequential relief of injunction. We are in complete agreement with the reasons assigned by the learned Judge. That under the veil of such relief sought for what was sought for, was the challenge to the consent decree which had otherwise attained finality in absence of any challenge at the instance of the defendants in the earlier suit. In fact, the consent terms were acted upon by execution of registered sale deeds. 10. So far as the core contention of the learned advocate for the appellants that the trial Court ought to have not treated the issue of maintainability as preliminary issue is concerned, on the ground that the issue was a mixed question of facts and law is concerned, it would be appropriate to look into the relevant observations of the Hon’ble Supreme Court in the case of Jamia Masjid vs Sri K V Rudrappa (Since Dead) By Lrs. & Ors reported in 2021 SCC Online SC 792, it was a case where the judgment and decree of the High Court in Second Appeal holding the suit being barred by res judicata was challenged before the Hon’ble Supreme Court. The learned trial Court had treated the issue of res judicata and limitation as preliminary issue. The Court arrived at conclusion that the suit was not barred by limitation, was barred by principle of res judicata. The aforesaid order of the trial Court was upheld by the First Appellate Court. However, in the Second Appeal before the High Court the matter was remanded back to the trial Court for disposal of the suit in accordance with law by holding that the suit is not barred by res judicata. In appeal before the Hon’ble Supreme Court the matter was once again remanded to the High Court. However, in the Second Appeal before the High Court the matter was remanded back to the trial Court for disposal of the suit in accordance with law by holding that the suit is not barred by res judicata. In appeal before the Hon’ble Supreme Court the matter was once again remanded to the High Court. The High Court after remand arrived at a conclusion that even a representatives suit under Section 92 of the CPC binds the parties to the suit and would thus operate as res judicata. The aforesaid judgment of the High Court was under challenge in the appeal before the Hon’ble Supreme Court. The question therefore, arose for consideration before the Hon’ble Supreme Court that whether res judicata raises a mixed question of law and facts. The Court upon appreciation of the record and submissions of the learned counsel held as under “26. The court while undertaking an analysis of the applicability of the plea of res judicata determines first, if the requirements of section 11 CPC are fulfilled; and if this is answered in the affirmative, it will have to be determined if there has been any material alteration in law or facts since the first suit was decreed as a result of which the principle of res judicata would be inapplicable. We are unable to accept the submission of the appellants that res judicata can never be decided as a preliminary issue. In certain cases, particularly when a mixed question of law or fact is raised, the issue should await a full-fledged trial after evidence is adduced. In the present case, a determination of the components of res judicata turns on the pleadings and judgments in the earlier suits which have been brought on the record. The issue has been argued on that basis before the Trial court and the first appellate court; followed by two rounds of proceedings before the High Court (the second following upon an order of remand by this court on the ground that all parties were not heard). All the documentary material necessary to decide the issue is before the court and arguments have been addressed by the contesting sides fully on that basis. 62. In view of the discussion above, we summarise our findings below: (i) Issues that arise in a subsequent suit may either be questions of fact or of law or mixed questions of law and fact. 62. In view of the discussion above, we summarise our findings below: (i) Issues that arise in a subsequent suit may either be questions of fact or of law or mixed questions of law and fact. An alteration in the circumstances after the decision in the first suit, will require a trial for the determination of the plea of res judicata if there arises a new fact which has to be proved. However, the plea of res judicata may in an appropriate case be determined as a preliminary issue when neither a disputed question of fact nor a mixed question of law or fact has to be adjudicated for resolving it; (ii) While deciding on a scheme for administration in a representative suit filed under Section 92 of the CPC the court may, if the title is contested, have to decide if the property in respect of which the scheme for administration and management is sought belongs to the Trust; (iii) A suit under section 92 CPC is of a representative character and all persons interested in the Trust would be bound by the judgment in the suit, and persons interested would be barred by the principle of res judicata from instituting a subsequent suit on the same or substantially the same issue; (iv) Since the first suit (OS 92 of 1950-51) was filed by members interested in the Jamia Masjid and the suit out of which the instant proceedings arise (OS 149 of 1998) was filed by the President of Jamia Masjid, the formulation in (iii) above is satisfied; (v) There was no adjudication in the first suit (OS 92 of 1950-51) on whether Abdul Khuddus had absolute title to the suit property. There was only a prima facie determination that Items 2 and 3 of the schedule of properties to the first suit belonged to Abdul Khuddus. The matters substantially in issue in OS 92 of 1950-51, which was a suit for administration and management of trust properties and for accounts, are distinct from the issues in the suit out of which the instant proceedings arise. Therefore, OS 149 of 1998 is not barred by res judicata in view of the decision in the first suit; (vi) While a compromise decree in a prior suit will not bar a subsequent suit by virtue of res judicata, the subsequent suit could be barred by estoppel by conduct. Therefore, OS 149 of 1998 is not barred by res judicata in view of the decision in the first suit; (vi) While a compromise decree in a prior suit will not bar a subsequent suit by virtue of res judicata, the subsequent suit could be barred by estoppel by conduct. However, neither the compromise petition dated 27 October 1969 nor the final decree in the second suit dated 27 October 1969 indicate that a compromise on the title to the suit property was arrived at. The compromise was restricted to the issue of the erstwhile lessee handing over possession of the suit property at the end of the lease; and (vii) The third suit (OS 100/1983) was a suit for an injunction simpliciter. The third suit was withdrawn after the suit out of which the instant proceeding arises was filed for seeking a substantive declaration and an injunction. No adjudication on the rights of the parties was made in the third suit.” In light of the aforesaid principles laid down by the Hon’ble Supreme Court there is no prohibition in considering the issue of res judicata as a preliminary issue, however in case where a mixed question of law or fact is raised. It is at that stage the issue should await a full-fledged trial after the evidence is adduced. For the purpose of determination of issue of res judicata sufficient material on record was produced to determine the plea of res judicata. The original plaintiffs – appellants herein have failed to point out any circumstances which required the trial Court to determine the plea of res judicata in light of any new facts required to be proved. Hence, there was no occasion to treat the issue being mixed question of law and fact as contended by the learned advocate for the appellants but rather was a pure question of law to be decided based on the material placed on record. 11. For the foregoing reasons, no error is found in the impugned judgment and order passed by the learned Judge dismissing the suit. Hence, present appeal fails. In view of dismissal of appeal, connected Civil Application also stands dismissed.