JUGAL KISHORE AND ANOTHER Vs. SHRI DWARKA DAS

JUDGEMENT

(1.) THIS is a revision petition filed under section 115 of the Code of Civil Procedure by Jugal Kishore and another defendants against the order dated May 17, 1973 of Shri R. K. Synghal, Sub Judge 1st Class, Amritsar, wherein he decided that it is not a fit case wherein the question of jurisdiction should be treated as preliminary issue.

(2.) THE facts of this case are that Dwarka Dass Plaintiff filed a suit for partition of 1/3rd share of the plot in dispute against Jugal Kishore and Jit Kishore defendants. The suit was contested by the defendants. It was pleaded that the plaintiff had 1/4th share and not 1/3rd share in the property in dispute They also alleged that the property in dispute was agricultural land and it was assessed to land revenue and, therefore, Civil Court had no Jurisdiction to try this suit. On these pleadings of the parties, issues were framed One of the issues was whether Civil Court his jurisdiction to try the suit. After the framing of the issues the defendants made an application under order 14 rule 2, Civil Procedure Code, that the issue regarding the jurisdiction of the Court should be decided as a preliminary issue. This application was contested by the plaintiff. After hearing the counsel for the parties, the Subordinate Judge held that the issue regarding the jurisdiction is not an issue of law, but it is an issue of law and fact and, therefore, it cannot be decided unless evidence is recorded as to the nature of the property. He, therefore, rejected the application of the defendants. Feeling aggrieved, the defendants filed this revision petition in this Court.

(3.) AS against this Mr. D.V. Sehgal, Learned Counsel for the respondent, has alleged that the property in dispute is not agricultural and that it is an industrial plot and it has never been used for agricultural purposes. He maintained that the mere fact it is assessed to land revenue would not go to show that it is agricultural land and according to him on one side of this plot there is a road and on the remaining three sides are factories. To support this contention, he relied on Uttam Chand another v. Khodaya : AIR 1929 Lah. 164 wherein it was held that the mere fact that the land pays land revenue does not make it agricultural land as land revenue would continue to be assessed on land even though it is subsequently included in a village or town. In Partap Singh Kairon v. Gurmej Singh : AIR 1958 P&H 409, it was held that the words, 'shall try' in order 14, rule 2; Civil Procedure Code, is mandatory and is not directory and if there is an issue or issues of law only in a suit and that the case or any part thereof can be disposed of on the issues of law only then the Court has no option but to try those issues an preliminary. In Major S.S. Khanna v. Brigadier F.J. Dhillon : (1964) 66 PLR 115, it was held by the Supreme Court as under : - -