Amrit Lal and Others vs Darshan Singh and Others

Sangeet Lodha, J.�This petition is directed against order dated 18.1.14 of Civil Judge (J.D.) No. 1, Jodhpur, whereby an application preferred by the petitioners under Order XIV Rule 2 CPC for decision of the issue No. 4, 5 & 6 as preliminary issues, stands rejected.

The relevant facts are that the respondents-plaintiffs preferred a suit for permanent injunction, in respect of a plot situated at Pratap Nagar, Jodhpur. The respondents-plaintiffs claimed ownership over the disputed plot on the strength of a Will executed by their father in their favour. The suit is being contested by the petitioners-defendants by filing a written statement thereto. On the basis of the pleadings of the parties, the trial court framed the issues. The issue No. 4, 5 & 6 relevant to present controversy as framed by the trial court, read as under:

During the pendency of the petition, the petitioners preferred an application with the prayer to decide the issue No. 4, 5 & 6 as preliminary issues.

After due consideration, the trial court arrived at the finding that whether the plaintiffs are in possession of the disputed plot or not is a question of fact to be determined on the basis of the evidence to be led by the parties and therefore, the issue No. 4 cannot be considered to be a issue of law. Similarly, the court observed that before decision of issue No. 6, it needs to be established that a dispute regarding the ownership and possession in respect of the disputed plot had already arisen before filing of the suit. Regarding the issue No. 5, the court observed that the issue No. 5 is a mixed question of law and facts and therefore, cannot be determined as preliminary issue. Accordingly, the application preferred by the petitioners stands rejected by the order impugned. Hence, this petition.

Learned counsel for the petitioners submitted that the court below has seriously erred in holding that the determination of issue No. 4, 5 & 6 are mixed questions of law and facts and therefore, the determination thereof requires evidence. Learned counsel submitted that without seeking relief for declaration of title, the suit preferred seeking permanent injunction is not maintainable and therefore, the question involved cannot be said to be a question determination whereof depends upon the facts to be proved. Learned counsel submitted that the value of the disputed property in respect whereof, the injunction is sought, is in lacs whereas the respondents-plaintiffs have paid the court fee valuing the suit at Rs. 400/- only. Learned counsel submitted that the issue No. 4,5 & 6, the determination whereof is sought by the petitioners as preliminary issues cannot be said to be the issues involving adjudication of questions of facts and therefore, the same deserve to be decided as preliminary issues.

I have considered the submissions of the learned counsel for the petitioners and perused the material on record.

Indisputably, the respondents-plaintiffs have filed the suit seeking permanent injunction in respect of the disputed property claiming themselves to be owner of the property on the strength of the Will executed by their father in their favour. The petitioners have questioned the maintainability of the suit for permanent injunction without there being the relief claimed for possession and title and accordingly, on the basis of the stand taken by the petitioners in their written statement filed, the issue No. 4 & 6 have been framed by the trial court. The burden of proof of the issues is upon the defendants. Obviously, the question whether the plaintiffs are in possession of the disputed plot or not is a question of fact, which needs to be decided on the basis of the evidence of the parties. That apart, whether on strength of the Will executed in their favour, the plaintiffs have acquired the title over the property or not and whether they were required to seek the relief of declaration of title so as to maintain the suit for permanent injunction, is also the question to be determined on the basis of the evidence to be led by the parties. The respondents-plaintiffs have preferred the suit seeking permanent injunction and therefore, at this stage, prima facie it cannot be said that suit has been undervalued.

Thus, on the facts and in the circumstances of the case, in considered opinion of this court, the trial court has committed no jurisdictional error in declining to determine the issues as preliminary issues as suggested by the petitioners.

No case for interference by this court in exercise of its supervisory jurisdiction is made out.

The petition is therefore, dismissed in limine.