RAMESHWAR Vs. ISHWAR DEVI AND ORS.

JUDGEMENT

(1.) The petitioner-original plaintiff has filed the present petition challenging the order dated 18.10.2011 passed by the Civil Judge (JD), Dholpur (hereinafter referred as the "trial court") in Civil Regular Suit No.83 of 2009, whereby the trial court has decided the issue No.2 as the preliminary issue against the petitioner-plaintiff.With the consent of learned counsels for the parties, the matter is finally heard and decided at the admission stage.

(2.) The petitioner-plaintiff has filed the suit against the respondents-defendants seeking injunction in respect of the property in question. In the said suit, the plaintiff had relied upon the partition deed dated 9.9.2002 to show that the family arrangement was made between the parties. The said suit has been resisted by the respondents-defendants denying the allegations/averments made in the plaint as also denied the execution of the alleged partition deed. The trial court framed as many as four issues from the pleadings of the parties. The issue No.2 of the said issues was "whether the partition deed dated 9.9.2002 was not admissible in evidence, the same being unregistered and not properly stamped one - The said issue No.2 has been decided by the trial court as preliminary issue against the petitioner by holding that the said partition deed was not admissible in evidence, vide the impugned order dated 18.10.2011. Being aggrieved of the said order, present petition has been preferred under Art. 227 of the Constitution of India.

(3.) The learned counsel Mr. D.K. Garg for the petitioner has submitted that the issue No.2 decided by the trial court as the preliminary issue was a mixed question of law and fact and could not be decided as the preliminary issue in view of the Order 14, Rule 2 of Civil Procedure Code. According to him, the said issue neither related to the issue of jurisdiction of the court nor with regard to the bar contained in any law for the time being inforce and therefore the said issue could not be decided as the preliminary issue. However, learned counsel Mr. Sanjay Sharma for the respondents defendants submitted that the said issue was decided as preliminary issue with the consent of the learned counsels for the parties and it is not proper on the part of the petitioner, to challenge the impugned order when it is passed against the petitioner.