JUDGMENT : K S HEMALEKHA, J. The present regular first appeal is preferred by the appellant/plaintiff, assailing the order dated 12.12.2024 passed by the Principal Senior Civil Judge, Kalaburagi (hereinafter referred to as ‘Trial Court’), in OS No.155/2021, whereby the trial Court dismissed the suit on preliminary issue No.4, holding that the suit is barred by principle of res judicata. 2. Brief facts are that, the plaintiff filed the present suit seeking the relief of declaration of title and perpetual injunction against the defendants in respect of the properties mentioned below: a) Sy.No.124, measuring 28 acres 21 guntas situated at Chinamagera village, Afzalpur taluk, Dist. Gulbarga b) Sy.No.87/3, measuring 06 acres 24 guntas situated at Melkunda-B village, Tq. & Dist. Gulbarga c) A house property situated at Chinamgera village, Afzalpur taluk, Dist. Gulbarga (hereinafter referred to as the ‘suit properties’). 3. The plaintiff averred that Chandappa was the propositus of the joint family and had two wives; Neelamma and Ambawwa (defendant No.1). Defendant No.2 Sharanamma is the daughter of Ambawwa. Neelamma had two sons, namely Bhimashankar (defendant No.3) and Sharanappa (deceased). The plaintiff is the wife of late Sharanappa. Defendant Nos.4 and 5 are the children of the plaintiff and late Sharanappa, while defendant No.6 is the wife of defendant No.4. 4. It is the case of the plaintiff that upon the death of Chandappa and Neelamma, their legal heirs were Sharanappa, Bhimashankar and Ambawwa. It is submitted that a memorandum of partition was executed on 24.06.1987 between Sharanappa, Bhimashankar, and Ambawwa followed by another memorandum of partition executed by Defendant No.1 on 08.02.1993. It is averred that as per the terms of the partition, Sy.No.110 measuring 31 acres 23 guntas was allotted to Bhimashankar and Sharanappa was allotted the suit properties. The deceased son of defendant No.1 was allotted land Sy.No.22 measuring 17 acres 20 guntas and the house bearing No.2-602/2 of Jagath, Kalaburagi and after the demise of the son, defendant Nos.1 and 2 have succeeded to the properties. It is further averred that defendant Nos.1 and 2 had earlier filed suit for partition and separate possession in O.S.No.67/2007 against the plaintiff and other family members. Although the plaintiff was arrayed as defendant and represented in that suit, she did not effectively contest the same due to ignorance and improper legal advise, resulting in the suit being decreed. It is further averred that defendant Nos.1 and 2 had earlier filed suit for partition and separate possession in O.S.No.67/2007 against the plaintiff and other family members. Although the plaintiff was arrayed as defendant and represented in that suit, she did not effectively contest the same due to ignorance and improper legal advise, resulting in the suit being decreed. The plaintiff now asserts that she is the lawful owner and possessor of the suit properties on basis of the valid partition that has taken place between the parties. 5. Defendant Nos.1 and 2 are the contesting defendants and they filed their written statement, inter alia denying the averments of the plaint. They contended that the suit properties in the present case were part of the five properties that was subject matter of a partition and separate possession in O.S.No.67/2007, which had been filed against the plaintiff and others. Out of the five properties in O.S. No.67/2007, three properties correspond to those now claimed in the present suit. The plaintiff herein who was arrayed as defendant took a similar plea of partition being effected on 24.06.1987. The suit in O.S.No.67/2007 on contest was decreed on17.01.2012 by the trial Court. The plaintiff herein along with Bhimsashankar, Chandrashekhar and Sheela filed R.A. No.1/2015 challenging the judgment and decree. The first appellate Court dismissed R.A.No1/2015, thereby confirming the judgment and decree passed in O.S. No.67/2007. Subsequently, the same parties preferred regular second appeal in R.S.A. No.200081/2018 before this Court, which was also dismissed on 26.06.2019. Defendants thus contend that the plaintiff now cannot claim exclusive ownership or possession over the suit properties, as the matter has already been adjudicated upon and the decree has attained finality. Accordingly, the defendants contended that the suit is barred by principles of res judicata under Section 11 of CPC. 6. It is further averred that the present suit has been instituted with an intention to delay the final decree proceedings in O.S.No.67/2007 and to frustrate the execution of the judgment and decree in favour of defendant Nos.1 and 2. 7. The trial Court upon framing issues, treated issue No.4 ”Whether the suit is hit by res judicata in view of the judgment passed in O.S. No.67/2007, R.A.No.1/2015 and RSA 200081/2018?” as a preliminary issue. 7. The trial Court upon framing issues, treated issue No.4 ”Whether the suit is hit by res judicata in view of the judgment passed in O.S. No.67/2007, R.A.No.1/2015 and RSA 200081/2018?” as a preliminary issue. The trial Court upon examining the pleading and the judgment in O.S. No.67/2007 held that the present suit is barred by principle of res judicate under Section 11 of CPC and accordingly dismissed the suit at the threshold. 8. The learned counsel for the appellant reiterating the several various contentions raised in the appeal memo would mainly argue that deciding issue No.4 as a preliminary issue without permitting evidence to be recorded is contrary to the settled proposition of law. It is contended that res judicata, being a mixed question of law and facts ought not to have been decided as a preliminary issue by the trial Court and any determination of the application of the principle of res judicata can be only made after the evidence is adduced pursuant to a full-fledged trial. 9. Having considered the contentions urged by the learned counsel appearing for the appellant and perused the papers, the point that arises for consideration in this appeal is: Whether the trial court was justified in dismissing the suit on a preliminary issue of res judicata? 10. Before adverting to the provisions of res judicata, we would like to briefly refer to the undisputed facts. Defendant Nos.1 and 2 in the present suit had filed O.S. No.67/2007 for partition and separate possession against the present plaintiff and others. In the said suit, the present plaintiff had taken a plea that a family arrangement/partition took place on 24.06.1987 wherein the suit properties were allotted to Sharanappa. On contest, the suit came to be decreed on 17.01.2012. The decree was upheld in R.A. No.1/2015 and further appeal in RSA No.200081/2018 was dismissed on 26.06.2019. The present suit is filed claiming absolute ownership over the same properties based on the family arrangement took place in the year 1987. 11. Section 11 of Code of Civil Procedure, 1908 reads as under: “11. The decree was upheld in R.A. No.1/2015 and further appeal in RSA No.200081/2018 was dismissed on 26.06.2019. The present suit is filed claiming absolute ownership over the same properties based on the family arrangement took place in the year 1987. 11. Section 11 of Code of Civil Procedure, 1908 reads as under: “11. Res judicata – No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, 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 or the suit in which such issue has been subsequently raised, and has been head and finally decided by such Court.” 12. Section 11 of CPC bars the relief of a suit where the matter in issue is directly and substantially the same in a former suit between the same parties and has been finally decided by a Court of competent jurisdiction. Thus, in order to attract principles of res judicata, the following ingredients must be fulfilled: i) The matter must have been directly and substantially in issue in the former suit ii) The must be heard and finally decided by the Court in the former suit. iii) The former suit must be between the same parties or between parties under whom they or any of them claim, litigating under the same title and; iv) The Court in which the former suit was instituted is competent to try the subsequent suit or suit in which such issue has been subsequently raised. 13. Order 14 Rule 2 before amendment by Act 104 of 1976 reads thus: “2. Issue of law and fact.- 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 the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined.” 14. The said provision had come up for consideration before the Apex Court in the case of S.S. Khanna Vs. F.J. Dillon , [ AIR 1964 SC 497 ] (S.S. Khanna). The said provision had come up for consideration before the Apex Court in the case of S.S. Khanna Vs. F.J. Dillon , [ AIR 1964 SC 497 ] (S.S. Khanna). The Apex Court observed that under Order 14 Rule 2 CPC where issues both of law and fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and postpone the settlement of issues of fact until other issues of law have been determined and held at para No.18 as under: “18. …..Under Order 14 Rule 2 Code of Civil Procedure, 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 the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court: not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lopsided trial of the suit.” 15. Order 14 Rule 2 after the substitution of Rule 2 by Act 104 of 1976, effective from 1-4-1977, reads thus: “2. 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. Order 14 Rule 2 after the substitution of Rule 2 by Act 104 of 1976, effective from 1-4-1977, reads thus: “2. 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, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if 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.” 16. The said amended provision of Order 14 of CPC came up for consideration before the Full Bench of the Allahabad High Court in the case of Sunni Central Wakf Board Vs. Gopal Singh Vishrad , [ AIR 1991 ALL 89 ] (Sunni Central Wakf Board) and observed that it is now discretionary for the Court to decide the issue of law as a preliminary issue, or to decide along with other issues. Further held that even all issues of law cannot be decided as preliminary issue and only those issues of law falling within the ambit of Clauses (a) and (b) of Sub-Rule (2) of Rule 2 could be decided and held at para Nos.22, 24, 25 as under: “22. Under the above provision once the court came to the conclusion that the case or any part thereof could be disposed of on the issues of law only it was obliged to try those issues first and the other issues could be taken up only thereafter, if necessity survived. The court had no discretion in the matter. This flows from the use of the word “it shall try those issues first”. Material change has been brought about in legal position by amended Order 14 Rule 2 which reads as follows: *** 24. The word “shall” used in old Order 14 Rule2 has been replaced in the present Rule by the word “may”. This flows from the use of the word “it shall try those issues first”. Material change has been brought about in legal position by amended Order 14 Rule 2 which reads as follows: *** 24. The word “shall” used in old Order 14 Rule2 has been replaced in the present Rule by the word “may”. Thus now it is discretionary for the Court to decide the issue of law as a preliminary issue or to decide it along with the other issues. It is no longer obligatory for the Court to decide an issue of law as a preliminary issue. 25. Another change brought about by the amended provision is that not all issues of law can be decided as preliminary issues. Only those issues of law can be decided as preliminary issues which fell within the ambit of clauses (a) and (b) of sub-rule (2) of Rule 2 of Order 14. Clause (a) mentions “jurisdiction of the Court” and clause (b) deals with ‘bar to the suit created by any law for the time being in force’. In the present case clause (a) is not attracted. The case is sought to be brought within the ambit of clause (b). For bringing it under clause (b) the Limitation Act and the Muslim Waqf Act have been invoked.” 17. The consideration of an issue and its disposal as a preliminary issue has, after 1976 amendment, be made permissible only in a limited case. Those issue are of law relate to i) the jurisdiction of Court or ii) a bar to the suit created by any law for the time being in force. 18. Res judicata, being a bar under Section 11 of CPC, is a “bar to the suit created by law”, and therefore squarely falls under sub-Rule 2(b) of Rule 2 of Order 14. The Apex Court in the case of Jamia Masjid Vs. Sri K. V. Rudrappa (Since Dead) By LRs. And Others , [ (2022) 9 SCC 225 ] (Jamia Masjid) observed that a suit at a preliminary stage on the ground of res judicata under Order 14 Rule 2 (2)(b) can be dismissed, where sufficient materials are on record, oral evidence is unnecessary, and res judicata can be treated as a pure question of law. 19. The Apex Court at Para Nos.19, 20, 21, 22, 23 and 24 held as under: “19. In Syed Mohd. 19. The Apex Court at Para Nos.19, 20, 21, 22, 23 and 24 held as under: “19. In Syed Mohd. Salie Labbai v. Mohd. Hanifa [Syed Mohd. Salie Labbai v. Mohd. Hanifa, (1976) 4 SCC 780 ] , S. Murtaza Ali, J. speaking for a Bench of two Judges observed that before a plea of res judicata can be given effect, the following conditions must be proved : (SCC p. 790, para 7) “7. … ‘(1) that the litigating parties must be the same; (2) that the subject-matter of the suit also must be identical; (3) that the matter must be finally decided between the parties; and (4) that the suit must be decided by a court of competent jurisdiction.’ ” The Court noted that “the best method” to decide the question of res judicata is first to determine the case of the parties as they are put forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgments which operate as res judicata. In that case, it was held that the judgment in the previous suit was confined to two points: (i) The plaintiffs claimed certain rights for the performance of ceremonies in the properties and a share in the income accruing to the mosque from the worshippers; and (ii) A claim, insofar as the graveyard was concerned for receiving pit fees for burials. Consequently, it was held that the trial court had not decided upon either the public character of the mosque or the mode and manner or the effect of the dedication of the site for the purpose of the mosque or the graveyard. E.1.Res judicata as a preliminary issue 20. Before we undertake an analysis on the applicability of the principles of res judicata vis-à-vis the three suits that were initiated with regard to the suit property it is necessary to discuss the submission of the counsel for the appellant that res judicata, being a mixed question of law and facts ought not to have been decided as a preliminary issue by the trial court. It was contended that any determination of the application of the principle of res judicata can only be made after evidence is adduced pursuant to a full-fledged trial. It was contended that any determination of the application of the principle of res judicata can only be made after evidence is adduced pursuant to a full-fledged trial. For this purpose, reliance was placed on the decision of a two-Judge Bench of this Court in Alka Gupta v. Narender Kumar Gupta [Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141 : (2010) 4 SCC (Civ) 73] (“Alka Gupta”) authored by R.V. Raveendran, J. 21. In Alka Gupta [Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141 : (2010) 4 SCC (Civ) 73] , the trial court had dismissed the subsequent suit on various preliminary grounds, one of which was that the filing of the subsequent suit stood barred by res judicata. However, on appeal, the two-Judge Bench of this Court held that the second suit was not barred by res judicata : (SCC pp. 149 & 151, paras 19-20 & 26) “19. The learned trial Bench passed the order on 13-3-2009 [Alka Gupta v. Narender Kumar Gupta, 2009 SCC OnLine Del 510] on the preliminary issue (Issue 1) relating to res judicata. But there is absolutely no discussion in the order [Alka Gupta v. Narender Kumar Gupta, 2009 SCC OnLine Del 510] of the learned Single Judge in regard to the bar of res judicata except the following observation at the end of the order:‘Of course it cannot be said that the present suit is barred by res judicata inasmuch as the said claims were not decided in that case. But the principle of constructive res judicata is applicable.’ This was not interfered with by the Appellate Bench. Both proceeded on the basis that the suit was not barred by res judicata, but barred by the principle of constructive res judicata without assigning any reasons. 20. Plea of res judicata is a restraint on the right of a plaintiff to have an adjudication of his claim. The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same. In this case, there was no plea of constructive res judicata, nor had the appellant-plaintiff an opportunity to meet the case based on such plea. *** 26. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same. In this case, there was no plea of constructive res judicata, nor had the appellant-plaintiff an opportunity to meet the case based on such plea. *** 26. … In the instant case, the High Court has not stated what was the ground of attack that the appellant-plaintiff ought to have raised in the first suit but had failed to raise, which she raised in the second suit, to attract the principle of constructive res judicata. The second suit is not barred by constructive res judicata.” (emphasis supplied) 22. The finding of the trial Judge on the applicability of the principles of res judicata was set aside on the ground that the plea was not clearly established and the plaintiff was not given the opportunity to contest the plea. Thus, in Alka Gupta [Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141 : (2010) 4 SCC (Civ) 73] , this Court set aside the decision [Alka Gupta v. Narender Kumar Gupta, 2009 SCC OnLine Del 2776] of the High Court on the above ground. 23. Order 14 Rule 2CPC states that if questions of fact and law arise in the same suit, the court can dispose of the case on the question of law alone if it relates to the following: “2. (2)(a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may […]” (emphasis supplied) 24. It has been held by this Court that a determination of whether res judicata is attracted raises a mixed question of law and facts. In Madhukar D. Shende [Madhukar D. Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85 ] and Ram Harakh [Ram Harakh v. Hamid Ahmed Khan, (1998) 7 SCC 484 ] , it was held that the plea of res judicata was a mixed question of law and facts. In both the cases, the plea of res judicata was taken for the first time before this Court. In both the cases, the plea of res judicata was taken for the first time before this Court. K. Ramaswamy, J. writing for a three-Judge Bench of this Court in Sushil Kumar Mehta v. Gobind Ram Bohra [Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193 ] held that the principle of res judicata cannot be fit into the pigeonhole of “mixed question of law and facts” in every case. Rather, the plea of res judicata would be a question of law or fact or a mixed question of both depending on the issue that is claimed to have been previously decided. The court while determining the applicability of the plea of res judicata would determine if there has been any material alteration in the facts and law applicable : (Sushil Kumar Mehta case [Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193 ] , SCC pp. 205-206, para 26) “26. … The doctrine of res judicata under Section 11CPC is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus, the decision of a competent court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. The reason is obvious; a pure question of law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction.” (emphasis supplied) 20. The Apex Court in Jamia Masjid’s case observed that when all necessary material for adjudication on the issue of res judicata is available on record and the issue does not require oral evidence, it is proper and valid to decide it as a preliminary issue. Thus, from the provisions stated and the principles laid down in the case of Jamia Masjid we hold that res judicata can and should be treated as a preliminary issue under Order 14 Rule 2(2)(b) of CPC when all necessary materials are before the Court and the issue does not require trial of facts. In the present case Order 14 Rule 2(2)(b) of CPC squarely applies, plaintiff in this suit was defendant in O.S. No.67/2007, the earlier suit ended in a decree for partition and separate possession, wherein the present plaintiff’s claim based on the 1987 partition was rejected. The complete pleadings, judgment and decree in O.S. No.67/2007, R.A.No.1/2015 and RSA No.200081/2018 was available and produced before the trial Court in the present suit. The title and ownership based on 1987 family arrangement was raised and negated in the earlier suit. The plaintiff’s present suit is based on the very same family arrangement, same set of facts and same parties. The title and ownership based on 1987 family arrangement was raised and negated in the earlier suit. The plaintiff’s present suit is based on the very same family arrangement, same set of facts and same parties. Therefore, the issue of res judicata has been rightly determined as a preliminary issue based on the undisputed documents. The plaintiff is attempting to reopen an issue already concluded namely the validity of the alleged family partition dated 24.06.1987 by now making a prayer as one of declaration and injunction. In the present scenario the plaintiff is not permitted to re-litigate on an issue already decided. 21. For the foregoing reasons, we answer the point raised for consideration accordingly and hold that there is no merit in the appeal and the trial Court has rightly dismissed the suit at preliminary stage on the ground of res judicata which warrants no interference and this Court pass the following: ORDER i) The regular first appeal is dismissed. ii) The order dated 12.12.2024 passed by the Principal Senior Civil Judge, Kalaburagi in O.S.No.155/2021 stands confirmed.