KUCHI CHARUMATHI DEVI Vs. GAMPA CHENCHU RATNAMMA

JUDGEMENT

(1.) Appellant filed O.S.No, 63 of 1993 on the file of the Court of Senior Civil Judge, Khammam, for partition of her half share in the four items mentioned of the plaint schedule, which are said to have been acquired by her father, 1st defendant (1st respondent) is the mother of the plaintiff- appellant, and 2nd defendant (2nd respondent herein) is said to be the son of the concubine of the father of the plaintiff- appellant, 1st defendant died during the pendency of the suit without filing written statement, 2nd respondent filed a written statement contending inter alia that the Court of the Senior Civil Judge, Khammam, has no territorial jurisdiction to entertain the suit, because items 1 to 3 of plaint schedule are in Nalgonda District and Item No. 4 of the plaint schedule was not acquired by the father of the plaintiff and is the absolute property of the 1st defendant, and so question of partition of item No. 4 does not arise during the life time of the 1st defendant. An issue relating to the territorial jurisdiction of the Court was framed by the trial Court.

(2.) After P.W. 1 was examined in chief in part on 12-8-1994, the suit underwent several adjournments till 2001. In April 2001, 2nd respondent filed a petition under Order 14 Rule 2 to decide the issue relating to the territorial jurisdiction of the Court as a preliminary issue, on the basis of the evidence of plaintiff as P.W. 1 in her chief- examination that Item No. 4 of the plaint schedule belongs to the 1st defendant. The learned Senior Civil Judge by his order dated 18-7-2001, on the basis that the plaintiff admitted in her chief-examination that Item No. 4 of plaint schedule is the property of the 1st defendant, and is not the property of the father of the appellant and since the remaining three items of plaint schedule are not within his territorial jurisdiction, he has no territorial jurisdiction to entertain the suit, and directed return of the plaint for presentation in proper Court.

(3.) The contention of the learned counsel for the appellant is that, since the petitioner seeking transfer of the suit to Nalgonda filed by the 1st respondent earlier was dismissed by this Court on the ground that the 2nd respondent who is an influential person at Nalgonda, the Court directing return of the plaint to be presented in the Court at Nalgonda is improper. It is his contention that 2nd respondent is a very influential person at Nalgonda is likely to influence the witnesses, and so appellant would be put to great hardship if the suit is tried at Nalgonda and so the order under appeal is liable to be set aside. It is also his contention that, since the question of territorial jurisdiction is a mixed question of law and fact, the learned trial Judge was in error in deciding that question without giving a full opportunity to the parties to adduce evidence and the order returning the plaint passed in the suit, but not in the petition filed under Order 14 Rule 2 C.P.C. is improper. The contention of the learned counsel for the 2nd respondent is that since the appellant in a suit for partition of the properties left behind by her father, deliberately included item No. 4 of the plaint schedule which admittedly belongs to 1st defendant only to create jurisdiction in the Court at Khammam, basing on the admission of the appellant that item No. 4 of the plaint schedule is the self-acquired property of the 1st defendant, the learned Senior Civil Judge finding that he has no territorial jurisdiction to entertain the suit cannot be said to be erroneous, more so when 2nd respondent is not claiming any right whatsoever on that item of property. It is his contention that the petition for transfer of the suit to the Court at Nalgonda was not dismissed on the ground that the 2nd respondent is likely to tamper with the evidence and therefore the same has no relevance in deciding the issue relating to jurisdiction. He further contended that in the petition filed by 2nd respondent under Order 14 Rule 2 C.P.C., appellant admitted in her counter that item No. 4 of the plaint schedule was purchased by the 1st defendant, and so it is clear that item No. 4 of the plaint schedule, which admittedly belongs to 1st defendant, was included only to create jurisdiction in the Court at Khammam, and as such the order under appeal needs no interference because a Court can order return of the plaint at any stage of the suit.