FAIZUDDIN Vs. MIR YUSUF ALI

JUDGEMENT

(1.) MOHIUDDIN , A.J.C. 1. This is a revision application filed by tin plaintiff Faizuddin, against the order dated 9th September 1929 passed by Mr. W.G. Mandpe, Additional District Judge, Bhandara, holding that the question of Mardan Ali's title to the two villages in the Sakoli tahsil must be tried as a preliminary point before proceeding to determine title to the whole estate.

(2.) THE plaintiffs, claim one-third share in the Porla estate, as heir of Mir Mardan Ali, who died in 1889. They allege that the whole estate consisting of 28 villages, including the two villages in the Bnandara district, belonged to Mir Mardan Ali, while the defendant contends that the mahals of Jamli Fazal and Jamli in the Bhandara district did not belong to Mir Mardan Ali, but were acquired by Mardan Ali in leasehold rights from the Zamindarin of Rajoli by means of patta dated 26th February 1884 for his son, Yaqubali, who was a minor at that time. Tue defendant also objected to the trial of the suit in the Bhandara Court, on the ground stated by him in para. 2 of the written statement dated 19th August 1929, which runs as follows: Defendant bags to submit that these mahals never belonged to Mir Mardan Ali, but they belonged to his son, Mir Yaqubali, and as such the claim of plaintiffs for a right to share in the estate left by Mir Mirdan Ali is not tenable and doss not lie. Consequently this Court has no jurisdiction to entertain the present suit as the rest of the property claimed lies in the Chauda district.

(3.) HE recorded his finding on 9th September 1929, and decided to determine the question of Mardan Ali's title to the two villages as a preliminary point. It is contended on behalf of the applicant that the procedure adopted by the Court is irregular and illegal, and that once jurisdiction is vested in a Court, as it certainly does at present, in the Bhandara Court on account of the allegations made in the plaint, it will not be taken away afterwards, even if it is found that the two villages in the Bhandara district did not belong to Mir Mardan Ali. The learned advocate for the applicant cited the following cases: Khatija v. Ismail [1889] 12 Mad. 380 and Kubra Jan v. Ram Bali [1908] 30 All. 560.