SHASHI KUMAR NARAIN SINHA Vs. PRATIMA SINHA

JUDGEMENT

(1.) THIS revision petition has been preferred against the order dated 26.8.2000 passed by the Sub - Judge -1st, Patna, in Title Suit No. 350 of 1998 dismissing the suit as a whole by holding that the suit is not maintainable.

(2.) TO enter into the legal aspect of the matter some backgrounds are necessary to be reiterated. Late Rai Sahab Ramdas Sinha was the admitted owner of the suit property along with others. He died leaving behind two sons, Chandra Kishore Narain Sinha and Hardeo Narain Sinha and four daughters, namely, Smt. Saraswati Devi, Smt. Ganga Devi, Smt. Chintamani Devi and Bidyarani Devi. The plaintiff -petitioners are the sons of Chandra Kishore Narain Sinha. The other son, namely, Hardeo Narain Sinha and only one son Surendra Kumar Sinha, who died leaving behind his wife Pratima Sinha, who happens to be defendant no. 1 and defendant nos. 2 to 5 are the daughters of late Surendra Kumar Sinha. Soon after the death of Rai Sahab Ramdas Sinha a dispute arose between the two brothers Chandra Kishore Narain Sinha and Hardeo Narain Sinha and as such, Hardeo Narain Sinha and his son Surendra Kumar Sinha had filed Title Suit No. 26 of 1978 (29/79) for partition of the joint family property in the court of Sub - Judge -V, Patna. In that suit, all heirs of Late Rai Sahab Ramdas Sinha were made parties. Ultimately, regarding the joint property including the suit property a compromise had been arrived at and as per that compromise the partition suit was disposed of. The daughters of Rai Sahab Ramdas Sinha had given up their shares in favour of their two brothers and practically, the property was divided amongst the brothers alone. In the compromise, the property was being divided in two blocks and according to the plaintiffs, a passage was exclusively allotted to the plaintiff -petitioners as per the compromise decree. But after the decree a permission was given to defendant nos. 1 to 5 to use the passage. Then defendant nos. 1 to 5 had sold away the property to defendant nos. 7 to 9 and then practically the dispute arose mainly in respect of the passage and also a peremptory claim being raised from the side of the plaintiffs that due to vicinity and ex - cosharers they should be given first preference for the purpose of purchase of the portion allotted to the defendant nos. 1 to 5. The suit was filed with several prayers. The first prayer being that defendant nos. 1 to 5 had no right to sell the suit property as a whole as specially the dotted colour portion in the schedule to defendant nos. 7 to 9. The second prayer was that the defendants were not entitled to transfer the personal and permissive right given by the plaintiffs regarding the use of passage and the third prayer was for grant of injunction to defendant nos. 7 to 9 not to change the physical feature of the suit property. Last prayer was with respect to peremptory right which is to be impiemented. The said prayer had been included in the plaint by way of amendment. The defendants have filed written statement challenging the maintainability of the suit as a whole and also the non -existence of any statutory right regarding pre -emption as per Mohamedan law. There was also a petition from the side of the defendants to decide the issue of maintainability as a preliminary issue as contemplated under Order 14 Rule 2 of the Code of Civil Procedure. It appears from the impugned order that against such petition, no objection has been raised from the side of the plaintiffs. But before any issue could be framed or any order being passed regarding the decision of maintainability issue as a preliminary issue the learned" court below passed the impugned order deciding that the suit being not maintainable in its present form mainly on the issue of pre -emption and the dismissal order has been recorded.

(3.) IN the present case, it appears that practically the dismissal has been recorded as a rejection of a plaint as contemplated under Order 7 Rule 11 of the Code of Civil Procedure although there was no such prayer from the side of the opposite parties. There was a petition from the opposite parties to decide the issue of maintainability as a preliminary issue and it becomes an admitted fact that no issue had been framed till the date of the impugned order. When a petition has been filed under Order 14 Rule 2 of the Code of Civil Procedure then it is the discretion of the court to consider whether such issue can be decided as a preliminary issue or not. If such issue depends only on the points of law and not on factual aspect then the same can be decided as a preliminary issue as contemplated under Order 14 Rule 2 (ii) of the Code of Civil Procedure. But without framing any issue any such decision being arrived at cannot be construed to be a decision within the jurisdiction of the court concerned. In that view the order at the outset seems to be an order without jurisdiction and hence definitely Section 115 of the Code of Civil Procedure comes into play.