MOHD MUSTAFA KHAN Vs. GULAM RAOOF

JUDGEMENT

(1.) A suit was filed by respondents Nos. 1 to 3 for declaration. It was also pleaded that the claim of the present petitioner on the basis of Will is of no consequence and it does not affect the right of the plaintiff/respondents Nos. 1 to 3.

(2.) AN application was preferred by the petitioner for trying issue regarding valuation and Court's jurisdiction as preliminary issues. In the application so filed the value on the house property was put at Rs. 4 lacs. After this, written statement was also filed. The petitioner pressed and made a prayer for trying the issue regarding jurisdiction as preliminary issue. The trial Court declined the prayer holding that this is a mixed question of law and fact. Against this order, a revision was filed. There was another matter also regarding which grievance was made. Case was sent to the trial Court. The trial Court did not interfere. The net result is that the issue in question was treated as an issue which could not be decided unless and until evidence is recorded.

(3.) IT be seen that the law with regard to the question as to which issue is to be tried as a preliminary issue has been settled by the Full Bench of this Court in 1979 Jab LJ 720 : AIR 1979 Madh Pra 153 (FB) (Ramdayal Umraomal v. Pannalal Jagannath ). There is an earlier decision 1970 Jab LJ 290 : AIR 1971 Madh Pra I (Santosh Chandra v. Gyan Sunder Bai), but as the decision on which the reliance is being placed by the plaintiff/ respondent has been given on the amended code, it would be apt to follow the same. In para 10 of Ramdayal Umraomal's case, 1979 Jab U 720 : AIR 1979 Madh Pra 153 (FB) (supra) it was observed as under:-