RAMANUJ TRIPATHI Vs. SHEO MURTI

JUDGEMENT

(1.) THESE are three revisions filed by Ramanuj Tripathi and others against the order dated 29-8-95 passed by learned Additional Commissioner Gorakhpur in Revisions arising out of proceedings under Section 229-B of the UPZA and LR Act.

(2.) BRIEFLY the facts of the case are that Sheo Murti and others instituted the suit for declaration of their rights. The defendant contested the suit on various grounds. They also pleaded that the suit was barred by Section 49 of the UPCH Act. They moved an application that the question whether the suit was barred by Section 49 of the UPCH Act or not be disposed of as a preliminary issue. On 12-5-1993, the trial Court held that the suit is not barred by Section 49 of the UPCH Act. Feeling aggrieved by this order Ramanuj Tripathi and others filed a revision before the learned Additional Commissioner which were dismissed. They have now come up in revision before the Board.

(3.) THE controversy involved for determination in these revisions is whether the trial Court was correct in passing the impugned order. As a matter of fact the issue for determination before the trial Court was whether the question whether the suit is barred by Section 49 of the UPCH Act or not should be decided first as a preliminary issue or whether it should be disposed of alongwith the other issues after taking the evidence of the parties. The learned trial Court instead of disposing of this point disposed of the question itself and held that the suit is not barred by Section 49 of the UPCH Act. As a matter of fact the trial Court was seized only of the point whether the bar of Section 49 UPCH Act should be decided first or alongwith other issues. The trial Court acted illegally in going beyond the ambit of the application and in holding that the suit itself was not barred by Section 49 of the UPCH Act. In the circumstances of the present case it is necessary to remand the case back to the trial Court for deciding the question whether the point concerning bar of Section 49 of the UPCH Act should be dealt with as a preliminary issue or whether it should be decided as a mixed issue off act and law after both parties have tendered their evidence.