DEWAN MONTAZ ALI Vs. MUSTT. BADIRANNESSA AND ORS.

JUDGEMENT

(1.) THE Petitioner, who is Defendant No. 1 in Title Suit No. 2 of 1980 impugns the order of the trial Munsiff dated 6.7.81 issued on petition No. 746 dated 25.6.80 deciding the preliminary issue, namely, Issue No. 1 holding that the suit is maintainable and it should proceed and consequently dismissing the Defendant's petition No. 746.

(2.) THE Plaintiff/Respondent's Title Suit No. 262/80 is under petition 6 of the Specific Relief Act for recovery of possession land. The Defendant Petitioner in his written statement inter alia, that be had been possessing the land since days of his father that the suit was filed beyond the period six months of dispossession; and as such, was not maintainable Under Section 6 of the Specific Relief Act. The trial Court the, pleadings framed several issues, Issue No. 1 being where suit is maintainable. On 25.6.80 while the Plaintiff ready with her six witnesses the Defendant -Petitioner filed petition No 746 praying that the Issue No. 1 be tried as a preliminary issue as the records of two earlier cases that would necessary to decide the point were already called for. The learned trial Court perusing the records of Misc. Case No. 202 Under Section 107 , Code of Criminal Procedure held that there was no dispossession of the Plaintiff on 26.3.78 what took place was only obstruction and not dispossession, and consequently, the suit could not be held to have been brought beyond six months of possession. Consequently the Petition No. 746 was dismissed the suit was held to be maintainable and ordered to produced. Hence this petition.

(3.) MR . B. Sarma, the learned Counsel for the Plaintiff/Respondent answer that the Defendant -Petitioner himself having petitioned to the court to try the Issue No. 1 as the preliminary issue there could be no question of recording any evidence for deciding that issue. The learned trial court has perused the relevant records of the cases called for at the instance of the Defendant and of a correct application of the law to what happened on 26.3.78 between the parties rightly held that there was only obstruction but no dispossession of the Plaintiff and that this finding of a jurisdiction fact is not liable to be interfered with in this revision.