ASHOK SINGHAL Vs. INDER KUMAR GUPTA & ORS

JUDGEMENT

(1.) This Regular First Appeal under Section 96 of the Code of Civil Procedure 1908 (CPC), is filed by the plaintiff in the suit impugning the Judgment of the Trial Court dated 20.09.2017 by which the trial court, during the course of leading of evidence, has dismissed the suit by suo moto framing a preliminary issue and holding that the suit as filed is not maintainable in the present form.

(2.) At the outset, I would like to note that a preliminary issue cannot be framed by a court when the preliminary issue is not a preliminary issue which falls under Order XIV Rule 2 CPC. An issue can be a preliminary issue only if two conditions are satisfied and these are, firstly, that the issue is a legal issue and secondly, the issue affects the jurisdiction of the court. In the present case, none of these two aspects of the issue either being a legal issue or the issue being one of jurisdiction, have been decided by the trial court by making any such observations and these aspects are the sine qua non under Order XIV Rule 2 CPC. The trial court has only dismissed the suit as not maintainable in the present form by holding that the two subject plots cannot be merged into one plot, and that the suit for partition should not have been filed as one suit for partition, but two separate suits for partition for two separate plots had to be filed. The two separate plots are owned by different brothers i.e. appellant/plaintiff and respondent no.3/defendant no.3 owned one plot of 250 sq. yds., and the respondent nos.1 and 2/ defendant nos.1 and 2 owned the adjacent plot of 350 sq. yds.

(3.) The facts of the case are that the subject suit for partition was filed by the appellant/plaintiff pleading that the four brothers purchased two adjacent plots of 250 sq. yds. and 350 sq. yds. Appellant/Plaintiff and respondent nos.1 to 3/ defendant nos. 1 to 3 are real brothers and children of Dr. Wilyati Ram Gupta. The case of the appellant/plaintiff was that the plot of 250 sq. yds. was purchased by the appellant/plaintiff and respondent no.3/defendant no.3 and the adjacent plot of 350 sq. yds. was purchased by the respondent nos.1 and 2/ defendants nos. 1 and 2. However, a construction was jointly made on adjoining both the plots by the four brothers, and it was agreed by all the brothers that on total construction made on the two plots together, the same would be owned by each of the four brothers in the ratio of 1/4th each. Accordingly, the suit property which is said to be bearing no. G-25, Amar Colony, Gokulpur, Shahdara, Delhi situated on a plot of 600 sq. yds. was sought to be partitioned by the following prayer clauses:-