Sardar Autar Singh v. Baljit Singh — 1985 DIGILAW 206 (ALL)

JUDGMENT : K.N. MISRA, J. 1. This revision u/s 115 of the CPC (for short the Code) is directed against the order dated 17-3-1983 passed by the learned District Judge, Sultanpur in Civil Misc. Case No. 110 of 1981, Baljit Singh v. Autar Singh and Anr. rejecting the plea about the jurisdiction of the Court to entertain suit by holding that the suit is maintainable in the court of District Judge, Sultanpur. Briefly stated, the facts of the present case are as follows: A suit for partition was filed by Plaintiff Baljit Singh as indigent person In forma pauperis. Before the application of the Plaintiff for being declared as indigent person could be disposed of, a plea was raised by the Defendant-applicants challenging the jurisdiction of the Court to entertain and decide the suit. The Plaintiff had filed this suit for partition in respect of certain movable and immovable properties detailed at the foot of the plaint. The Immovable property, namely, house and land is situate at Haiderparh, district Bara Banki while the other property, namely, business carried out by Firm Autar Singh Kartar Singh and Firm Jogendra Singh Gurvendar Singh were at Sultanpur. The Plaintiff had prayed for partition of said immovable property and also the properties of the business carried out in the name of aforesaid two firms located at Bazar Musafirkhana and Nibalganj, district Sultanpur. The business carried out In the name of Firm Shahendar Singh at Haidergarh district Barn Banki was also subject matter of the suit for partition Learned Counsel for the Plaintiff-opposite party admits that the suit for partition of the assets of the said three firms would be treated to be partition of movable properties, which are situate both in the districts of Sultanpur and Bara Banki. He further concedes that no immovable property, which is subject matter in the suit for partition, is situated in district Sultanpur. The learned District Judge, Sultanpur, vide order dated 17th March, 1983 held the suit for partition in respect of aforesaid properties to be maintainable in his Court and rejected the plea raised by the Defendants challenging the jurisdiction of the Court to entertain and decide the suit. This revision is directed against the said order. 2. The learned District Judge, Sultanpur, vide order dated 17th March, 1983 held the suit for partition in respect of aforesaid properties to be maintainable in his Court and rejected the plea raised by the Defendants challenging the jurisdiction of the Court to entertain and decide the suit. This revision is directed against the said order. 2. Learned Counsel for the revisionist Sri H.L. Srivastava urged that learned District Judge has erred in assuming jurisdiction to entertain and decide the aforesaid suit for partition because no such suit for partition in respect of immovable property could be filed in the court of District Judge, Sultanpur as the immovable property was located in district Bara Banki and not at Sultanpur. Learned Counsel further urged that since the cause of action in the present suit for partition of immovable and movable properties was joint, and as such, entire suit could be filed in the Court of District Judge, Bara Banki and the same would not be maintainable in the court of District Judge, Sultanpur. 3. In reply learned Counsel for the Plaintiff-opposite party urged that the suit could be filed in the court of District Judge, Sultanpur because the cause of action arose in the local limits of jurisdiction of District Judge, Sultanpur where some of the movable properties are situate. He urged that the partition of the assets of the business carried out in district Sultanpur could not be filed in the court of District Judge, Bara Banki and since the cause of action for partition was one and the same in respect of all the movable and immovable properties, the suit could be filed by the Plaintiff in the Court of District Judge, Sultanpur. In support of his contention learned Counsel referred to Clause (c) of Section 20 of the Code which provides that the suit shall be instituted in the court within the local limits of whose jurisdiction the cause of action, wholly or in part, arises. The said contention was upheld by the learned District Judge and the plea about jurisdiction raised by the Defendant-applicants was rejected in view of Section 20(c) of the Code. I have considered the arguments raised by the learned counsel for the parties. 4. There appears to be no dispute about the jurisdictional facts and it is admitted that no portion of the immovable property is situate in district Sultanpur. I have considered the arguments raised by the learned counsel for the parties. 4. There appears to be no dispute about the jurisdictional facts and it is admitted that no portion of the immovable property is situate in district Sultanpur. The suit for partition of immovable property would be maintainable in the court within whose local limits of jurisdiction the property is situate. Reference may be made to Section 16(b) of the Code which provides that subject to the pecuniary or other limitations prescribed by any law, a suit for the partition of immovable property shall be instituted in the Court within the local limits of whose jurisdiction the property is situate. In Giridharilal Surana v. Mirzamal Agarwala AIR 1962 Gau 95, the Division Bench of Assam High Court, while dealing with the question of jurisdiction in respect of immovable property, held that: The general rule that the Court within the limits of whose jurisdiction a part of the cause of action arises can entertain the suit is not applicable to suit covered by Section 16 CPC unless it can be shown that a particular case is covered by the proviso to the section. The section forbids even claims for rent of immovable property being tried by a Court which has no jurisdiction over the immovable property in question. I am In respectful agreement with the view expressed in the said decision and I find that by virtue of Clause (c) of Section 20, the jurisdiction of the court to entertain a suit for partition in respect of immovable property cannot be ousted on the averment in the plaint to the effect that the cause of action, either wholly or in part, arose within the jurisdiction of another court where the immovable property is not situate. A suit for partition in respect of, immovable property bad to be filed in the court within the local limits of w lose jurisdiction the property is situate as is provided u/s 16(b) of the Code. This provision is not subject to the provisions contained in Sections 18 - 20. A suit for partition in respect of, immovable property bad to be filed in the court within the local limits of w lose jurisdiction the property is situate as is provided u/s 16(b) of the Code. This provision is not subject to the provisions contained in Sections 18 - 20. On the other hand 1 find that the provision contained in Section 20(c) is subject to the limitation contained in earlier sections as is evident from the opening words to the effect-'subject to the limitations aforesaid.' Thus, the provision contained in Section 20 would not operate indifferently and would be construed subject to the limitation contained in Sections 16 - 19 of the Code. In this view of the matter, I am of the opinion that a suit for partition in respect of immovable property would be maintainable only in the Court within the local limits of whose jurisdiction the immovable property is situate as is provided u/s 16(b) of the Code. Such suit cannot be filed in any other court merely on the ground that the cause of action for the partition of the immovable property, wholly or in part, arose within the local limits of jurisdiction of another court as well. The provisions contained in Section 20(c) would not be construed in the manner so as to take away or curtail jurisdiction of the court to which the suit for partition of immovable property would be required to be filed in accordance with the provisions contained in Section 16(b) of the Code. In this view of the matter I find that Section 20(c) cannot be pressed in service by the learned Counsel for the opposite party in support of his argument that in respect of immovable property also the suit could be filed in the Court of District Judge Sultanpur as a composite cause of action had allegedly arisen at Sultanpur for the partition of both movable and immovable properties. The learned District Judge had rejected the plea of jurisdiction raised by the Defendant-applicants placing reliance on said Section 20(c) of the Code, which, in my opinion, is an altogether erroneous view and the suit cannot be said to be maintainable in the Court of District Judge, Sultanpur in respect of partition of alleged joint property in suit. 5. The learned District Judge had rejected the plea of jurisdiction raised by the Defendant-applicants placing reliance on said Section 20(c) of the Code, which, in my opinion, is an altogether erroneous view and the suit cannot be said to be maintainable in the Court of District Judge, Sultanpur in respect of partition of alleged joint property in suit. 5. Learned Counsel had, however, urged that since part of the movable property is situate within the jurisdiction of the Court at Sultanpur, and, as such, the Plaintiff can institute suit for partition in respect of the entire joint property, movable and immovable. His contention was that the Plaintiff had got right to select the forum for institution of suit for partition and in support of his contention he placed reliance upon Gopal Das Agairwala v. Hari Kishan Das AIR 1936 AH. 514 wherein it has been held that: where there are two Courts, both of which would normally have jurisdiction to try the suit, the parties may be allowed to agree among themselves that the suit should be brought in one of those Courts and not in the other. This decision affords no assistance to the learned Counsel because the observation in the said case was made considering the question where the parties had agreed to bring the suit in any particular court and in that context it was observed that: The object of parties entering into a contract of this nature is to afford facility or convenience either to both the parties or to one of the parties and it is unfair that any one of the parties should resile from the contract entailing hardship and inconvenience to the other party. Where is net such situation in the present case at hand. The Defendant-applicants had not agreed nor there exists any contract between the parties that the suit may be filed for partition in respect of the properties in suit in the Court of District Judge, Sultanpur. Thus, the question of maintainability of the suit in the court of District Judge, Sultanpur is to be considered with reference to the provisions contained in Sections 16 - 20 of the Code. As already observed above, the suit for partition in respect of immovable property would be maintainable only in the Court within whose local limits of jurisdiction the Immovable property is situate, as is provided u/s 16(b) of the Code. As already observed above, the suit for partition in respect of immovable property would be maintainable only in the Court within whose local limits of jurisdiction the Immovable property is situate, as is provided u/s 16(b) of the Code. The Plaintiff could choose the forum for filing the suit for partition in respect of the immovable property where two courts are said to be possessed with jurisdiction to entertain a suit for partition in respect of immovable property on the ground that some portion of the immovable property in suit is located within jurisdiction of both the Courts. In such a case where the immovable property is situate in the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction the immovable property is situate and the Plaintiff, in that situation, can choose the forum for instituting the suit for partition in respect of entire immovable property situate within the jurisdiction of different Courts as is provided in Section 17 of the Code. 6. In the present case, however, no portion of the immovable property is situate in District Sultanpur, and, as such, Section 17 of the Code is not attracted to the present case, and so I do not find any substance in the argument of the learned Counsel for the opposite parties that the suit could be instituted in the Court of District Judge, Sultanpur merely on the ground that Plaintiff was at liberty to choose the forum for Instituting the suit on that strength of the above referred decision cited by him. 7. Referring to Section 22, learned Counsel for the Plaintiff-opposite parties urged that the Defendant-applicants should have taken steps for the transfer of the case to the Court of District Judge, Barabanki instead of raising the plea of jurisdiction, which according to him, was untenable. His further contention was that in an application for transfer of the suit, the court had to consider the convenience of the parties in continuing the case in the court where it is maintainable. Learned Counsel bad urged that since the Plaintiff is minor, and as such, it would be more convenient if the suit be continued in the court of District Judge, Sultanpur. Learned Counsel bad urged that since the Plaintiff is minor, and as such, it would be more convenient if the suit be continued in the court of District Judge, Sultanpur. I am unable to agree with this contention; firstly, because the suit for partition in respect of immovable property was not maintainable as already observed above, and as such, the learned District Judge, Sultanpur had no jurisdiction to entertain the suit for partition of Immovable property and so there could be no question of seeking transfer of the case u/s 22 of the Code by the Plaintiff which provides that where a suit may be instituted in any one of the two or more Courts and is instituted in one of such Courts the Defendant may at the earliest possible opportunity, apply to have the suit transferred to another Court. The suit in respect of partition of immovable property could not be filed in the Court of District Judge, Sultanpur, and, as such, recourse to the provisions of Section 22 could not be made by the Defendants; and secondly, I find that while determining the question of jurisdiction of a particular Court to entertain a suit, the convenience of the parties is not the criteria for judging the jurisdiction of the court to entertain a suit. It is well settled that even by consent of the parties, the court cannot assume jurisdiction where it has gone and even If plea of want of jurisdiction is not taken, the decree passed in the suit would be non-est and would not be enforceable and such a plea can be raised even at the time of its execution or at any time when it is sought to be enforced. Thus, I find that the aforesaid argument of the learned counsel, being based on wrong premise, cannot be accepted and merely on the basis of convenience of the Plaintiffs the suit for partition in respect of immovable property cannot be said to be maintainable in the court of District Judge, Sultanpur nor the Plaintiff could be said to be entitled to institute his suit in the court of District Judge, Sultanpur with reference to Sections 17 and 20(c) of the Code, which are not applicable to the present case as no portion of the immovable property is located within the local limits of jurisdiction of District Judge, Sultanpur. 8. 8. The next question for consideration in the present case is whether a suit in respect of movable properties referred in the Schedule relating to partition of assets of two firms mentioned therein could be instituted in the Court of District Judge, Sultanpur on the cause of action averred in the plaint. It is not disputed that these two firms carried on business at Musafir Khana and Nihalganj in district Sultanpur. The third firm, of which the Plaintiff alleges to be partner, carried on Its business at Haidergarh in district Barabanki in the name and style of Firm Shahendra Singh. It is, thus, to be seen whether the suit for partition in respect of assets of the aforesaid two firms which were carrying on business at district Sultanpur could be instituted in the court of District Judge, Sultanpur or not along with the suit for partition of immovable and movable properties situate in district Barabanki. 9. As already observed above the suit in respect of immovable property situate in district Barabanki could not be instituted in the court of District Judge, Sultanpur hence the question that remains to be considered is whether the suit for partition of properties in respect of the assets of the aforesaid three firms carrying on business in district Sultanpur and Barabanki could be instituted in the court of District Judge, Sultanpur or not. These firms did not hold any asset in the shape of immovable property. Learned Counsel for the Defendant-applicants has urged that the firm carrying on business in partnership were dissolved and the Defendants are not carrying on the business in partnership of the Plaintiff. This fact would not be very material for determining the question of jurisdiction of the court in entertaining the suit for partition in respect of the assets of the firms, even if these firms were dissolved at any time prior to the filing of the suit or even thereafter. A suit for partition of the assets of the firms carrying on business in partnership of the Plaintiff and the Defendants and for taking accounts of the dissolved partnership firm can be instituted in the Court of competent jurisdiction with reference to the cause of action averred in the plaint. A suit for partition of the assets of the firms carrying on business in partnership of the Plaintiff and the Defendants and for taking accounts of the dissolved partnership firm can be instituted in the Court of competent jurisdiction with reference to the cause of action averred in the plaint. A suit for partition of the assets of the firm cannot be treated to be a suit for partition of immovable property, and, as such, the provisions of Section 16(b) of the Code would not be attracted. If a suit for partition relates to only movable property It would lie in the Court within the local limits of whose jurisdiction the cause of action, wholly or in part, arises and Section 20(c) would cover such a case and Section 16(b) of the Code would not be attracted to such a case because in Section 16(b) reference is only to "immovable property". If both, movable and immovable properties are situate within the local limits of jurisdiction of one and the same Court, then a suit for partition will lie in that Court in respect of both such properties. But where the immovable property is situate within the local limits of jurisdiction of another court, the suit cannot be said to be maintainable in the Court within whose local limits of jurisdiction the movable property alone is situate and no part of the immovable property is located there. In such a case the jurisdiction of the Court to entertain the suit for partition of movable property and immovable property would depend on the nature of the cause of action and where it has accrued. 10. In order to determine the jurisdiction of Court to entertain a suit for partition of joint property the relevant questions would be an to where the cause of action, wholly or in part, has arisen for partition and the nature of the property involved; whether it is movable property alone or movable and immovable both and its location. 11. In Miraj State Bank Ltd. Vs. Nabi Bapu and Others, AIR 1952 Bom 363 while dealing with the question of cause of action in a suit for partition, the Division Bench observed that: The existence of property in a partition suit is a part of the cause of action. It is necessary for the Plaintiff to allege that there is some property of which he is seeking partition. It is necessary for the Plaintiff to allege that there is some property of which he is seeking partition. The mere fact that there was a joint family and that the Plaintiff is a member of the joint family would not be sufficient to entitle him to maintain the suit. If a joint family had no property, then there would be nothing to partition, and, therefore, the averment as to the existence of property would be the averment of a necessary and material fact. This necessary and material fact would undoubtedly be a part of the cause of action. As the existence of property is a material fact consisting a part of the cause of action in a partition suit, the location of the property must be considered in order to determine the jurisdiction of the Court. If the property or part of the property is situated within jurisdiction, then the cause of action or a part of the cause of action has arisen within jurisdiction. The question of location of movable does not arise from the point of view of the cause of action. In holding that the Court has jurisdiction to try a suit for partition of movables if the movables are situated within jurisdiction, this Court is not so holding on the ground, that the suits of the movables is within jurisdiction but solely on the ground that the location of the movables within jurisdiction constitutes a part of the cause of action of a partition suit for movables. 12. It, thus, appears to be well settled that a suit for partition can be instituted in the Court within whose jurisdiction the property is located, as the location of property is part of cause of action in a suit for partition. There would be no difficulty at all in filing a suit for partition if the entire known joint property is located within the local limits of jurisdiction of one Court, but the real difficulty would crop up where the property is found to be located within the jurisdiction of different courts because in that event the question would arise in which Court the suit for partition be instituted or whether more than one suit for partition can be filed in different courts on the ground of situs of properties sought to be partitioned. The Division Bench of Madras High Court in (Bankara) Basavana Gowd v. (Bankara) Doddalingappa AIR 1923 Mad. 584 observed: That generally only one suit for partition will lie represents settled law. That is the only view reconcilable with the terms of Section 11, explanation 4 and Order 2 Rule 2 Code of Criminal Procedure. The cause of action in a partition suit of joint family property must be regarded as exhaustive of the whole property available for division, so far as its existence is known at the date of the plaint. The position of suit properties in two jurisdiction makes no difference in the application of the principle involved in Order 2 Rule 2. A statement that Plaintiff reserves his right to sue for the property and that he will enforce that right in another proceedings is not enough. He cannot exclude the application of the principle above referred to by merely saying that he would not respect it. Statements that Plaintiff reserves his right to sue in respect of a part of the property are not uncommon in plaints and are made properly and naturally when the property In question is not immediately divisible and the Plaintiff desires to put on record that he will claim it in the future. 13. Similar view was expressed in (Duvvuri) Subramaniam v. (Duvvuri) Lakshminarasamma AIR 1927 Mad 213 and it was held that: In a partition all the properties of the family should be included. It is not open to a member of the joint family to ask for a partition of a certain item and leave the rest except in cases where some of them could not be divided by reason of their being in the possession of usufructuary mortgagees or being under a long lease or set apart for maintenance of a widow or some member of the family or some other reasons. It is not left to the option of the Plaintiff In a partition suit to ask for relief in respect of certain properties and then to say that he would ask for the partition of the other properties at some future time, when the circumstances above adverted to are not present.... 14. It is not left to the option of the Plaintiff In a partition suit to ask for relief in respect of certain properties and then to say that he would ask for the partition of the other properties at some future time, when the circumstances above adverted to are not present.... 14. Thus, in view of the above, I am of the opinion that since in a partition suit all the known joint properties have to be brought in hotchpot for partition, and, as such, a single suit for partition will be competent and not several suits in different courts on the ground of location of some items of joint property within the local limits of their jurisdiction. One single suit will be maintainable in the Court competent to entertain suit for partition in respect of both for movable and immovable properties provided the cause of action seeking partition of joint properties is the same. Although it appears to be correct to say that if the properties are situate within the jurisdiction of different courts, then part of the cause of action for partition of the property would arise within the jurisdiction of different courts on the ground of location of properties, but it is equally well settled that the cause of action in a partition suit of joint properties must be regarded as exhaustive of the whole property available for division, and, as such, one single suit for partition would alone be maintainable In respect of entire joint property. The location of property would be referable only for determining the forum where the suit should be instituted. This necessary and material fact would undoubtedly be a part of cause of action but in a suit for partition joinder of part of causes of action appears to be permissible on the ground of the aforesaid well recognised principle that in a suit for partition all the joint properties must be included. The cause of action for partition of entire known joint property would be one and the same though part of the cause of action would be taken to arise where the property is located and it would be referable only for the purpose of determining jurisdiction of Court to entertain the suit. The cause of action for partition of entire known joint property would be one and the same though part of the cause of action would be taken to arise where the property is located and it would be referable only for the purpose of determining jurisdiction of Court to entertain the suit. The Court within the local limits of whose jurisdiction the cause of action or part of cause of action arose on the ground of situs of property would be entitled to entertain the suit subject to the provisions contained in Section 16(b) of the Code. It would not be a cause or mis-joinder of causes of action If In a suit for partition all the joint properties are included for partition especially in view of the aforesaid principle that all the joint properties are to be brought in hotch-pot for partition. In this view of the matter I am of the opinion that though the joint property may be located within the limits of jurisdiction of more than one Court, but only one suit for partition in respect of the entire property would be maintainable. The question as to where such a suit would lie would be determined with reference to provisions of Sections 16 - 20 of the Code. 15. If there are both movable and immovable properties located within the local limits of jurisdiction of one Court, then there would be no difficulty in the matter and the suit would lie in that Court for both such properties. But movable and immovable properties are located at different places within the local limits of jurisdiction of different courts, It would be required to be seen whether at all such places apart of immovable property is also located or not, because if that would be so the Plaintiff would be entitled to Institute a single suit for partition in either of such Courts, where immovable property is located though partially in view of Section 17 of the Code. But where the claims are with respect to both movable and Immovable properties and the latter is not at all situated within the jurisdiction of the Court, then the Court within whose local limits of jurisdiction the immovable property 1st not situate will not have jurisdiction to entertain and try the suit though the movable property or part thereof is situate within its jurisdiction. See Kamarsu Raja Rao v. Rajalah (1984) 1 A LT 1968. Thus, a suit for partition would He only in the Court within whose local limits of jurisdiction the immovable property, either as a whole or in part, is located and in that suit the entire joint property though situate elsewhere, would also be included on the basis of (sic) recognised principle that in a suit instituted for partition all the joint properties belonging to parties must be brought in hotch-pot for partition. 16. In the present suit, the Plaintiff in para (?) of the plaint has averred that the cause of action for filing the suit for partition in respect of the properties in suit accrued to him in the month of June, 1981 when the Defendant Nos. 1 and 2 refused to partition the properties and to give his share therein. Thus, the cause of action for partition of the suit properties, both movable and Immovable, is one and the same as pleaded in para 10 of the plaint and a composite suit for partition of movable and immovable properties could be instituted by the Plaintiff fur partition and separation of his alleged share in joint movable and immovable properties. But this suit for partition could not be instituted in the Court of District Judge. Sultanpur as no portion of immovable property is situate within the local limits of his jurisdiction and the entire immovable property is located in District Barabanki. Thus, in view of the above, I am of the opinion that the District Judge, barabanki alone would have jurisdiction to entertain the suit for partition in respect of the entire joint immovable property situate in District Barabanki and also for the partition of the assets of the business carried in district Barabanki and district Sultanpur. Since the suit for partition of immovable property could not be instituted in the court of District Judge, Sultanpur in view of Section 16(b) of the Code as no part of the Immovable property is located within the local limits of his jurisdiction, and, as such, the present suit for partition in respect of the alleged joint properties located in two different districts could not be filed In said Court nor it can be permitted to be continued there. A suit for partition of family property, which consists of both movable and immovable properties, should be brought in the Court within the jurisdiction of which immovable property is situate. Thus, the present suit should have been instituted in the Court of District Judge, Barabanki, and not in the Court of District Judge, Sultanpur. 17. In this view of the matter I find that the learned District Judge, Sultanpur erred in holding that the suit is maintainable in his Court. It is well settled that where a suit is not maintainable in a Court where it is instituted, the Court will not proceed to decide it on merits and would return the plaint to the Plaintiff for being presented in the Court of competent jurisdiction. The present revision is, therefore, maintainable u/s 115 of the Code against the impugned order, which deserves to be set aside in view of what has been said above. 18. In view of the above, this revision succeeds and is hereby allowed and the order dated 17-3-1983 is set aside and the learned District Judge is directed to return the plaint to the Plaintiff for filing it in the Court of District Judge, Barabanki. No order as to costs. Revision allowed.