VISHRAM PARBAT H U F Vs. SHRUTI BUILDERS

JUDGEMENT

(1.) THE applicant-defendant No. 1 has moved this Court to revoke the leave granted to the plaintiff under Clause 12 of the Letters Patent. There is a Notice of Motion for interim relief pending in the suit. In that light of the matter, and in view of the order dated 17th June 1999 of the Appellate Bench of this Court passed in Appeal No. 336 of 1999 in Chamber Summons No. 1167 of 1998 in Suit No. 4060 of 1998, the revocation of leave is being decided as a preliminary issue as to the jurisdiction of this Court to hear and decide the suit. The application for leave to revoke has been moved on the ground that the suit is a suit for land and no part of the cause of action has arisen within the jurisdiction of this Court as the land is situated outside the territorial jurisdiction of this Court and consequently, no leave could have been granted under Clause 12 of the Letters Patent. Parties are agreed that the said issue be decided as a preliminary issue by virtue of section 9-A of the Code of Civil Procedure as introduced in this State. Parties have further agreed that no evidence need be led in the matter and that the issue can be decided on the pleadings as they exist. Against that background, the preliminary issue as to jurisdiction of this Court to hear and decide this suit can now be decided.

(2.) AT the outset, I can only paraphrase the words of Patanjali Sastri, J. , in (Moolji Jaitha and Co. v. K. S. and W. Mills Co.), A. I. R. 1950 (37) Federal Court 83. The learned Judge while giving a separate judgment, concurring with the majority observed as under: the numerous cases in the books on the construction of that Clause reveal what a prodigious amount of judicial time has been expended on endless debate as to its meaning and application. Section 5, Civil P. C. of 1859, which also used the ambiguous expression "suits for land" in defining the jurisdiction of the moffusil courts , has been amplified in the subsequent Codes by enumerating certain specific categories of suits and thus removing the ambiguity, but no amendment has been made in Cl. 12, Letters Patent. It is to be hoped that the appropriate legislative authority will turn its attention to the need for its clarification on similar lines". After expressing my lament that nothing has happened since then, I proceed to decide the said issue.

(3.) IN order to enable this Court to decide the issue, it will be essential to find out what are the reliefs prayed for. The main relief is prayer Clause (c), which reads as under: that the defendants No. 2 and 3 be ordered and decreed to partition or sub-divide the sub-plots No. 1 to 7 more particularly described in Exhibit A annexed and hereto in accordance with the stipulation as set out under Assignment dated 11th December, 74 the Indenture-cum-Understanding dated December 31,1988, under the Deed of Partition dated December 26,1991 and under the Deed of Rectification dated June 18, 1992". Thus, it is clear that the plaintiff has filed the suit on the basis that he has certain rights in the land based on the agreement and that defendants 2 and 3 be ordered and decreed to partition or sub-divide the plots therein described. Prayer Clause (a) is for cancellation of agreement for sale dated 16th July 1994 made between defendant No. 1 and defendant No. 2 as being illegal, null and void. Prayer Clause (b) is that defendants No. 1 and 2 be ordered and decreed to deliver the said agreement for cancellation. Prayer Clause (d) is to direct defendants No. 2 and 3 to hand over to the plaintiff, quiet, vacant and peaceful possession of sub plot No. 1 and two-thirds out of 66% undivided rights in sub-plot No. 2 as also internal roads. Prayer clauses (e), (f) and (g) are in the nature of mandatory injunctions to refrain the defendants from executing any further documents etc. and from using the FSI and TDR in respect of other sub plots other than sub plots No. 1 and 7 until the sub division of sub plot is determined and to hand over the title deeds and deposit them in the Court as set out in Exhibit O-18. These, therefore, are the prayers that have been prayed for in the suit. Therefore, the plaintiff has approached this Court on the ground that he has title in the land based on documents as referred to and is seeking cancellation of the agreement between defendant No. 1 on the one hand and defendants No. 2 and 3 on the other based on his right and title in the land. He further seeks sub division/partition in respect of the land, which has been described in the agreement and recovery of possession from defendants No. 2 and 3. This recovery from defendants No. 2 and 3 is based on the agreement entered into between defendants No. 1, 2 and 3 whereby defendants No. 2 and 3 had agreed to hand over possession of property to defendant No. 1 in terms of Clause 29 of the said agreement and to convey title in terms of Clause 31 of the agreement.