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2001 DIGILAW 1082 (PAT)

Shashi Kumar Narain Sinha v. Smt. Pratima Sinha

2001-12-04

P.K.DEB

body2001
Judgment 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. 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. Before filing of this revision petition a caveat petition was filed under Section 148A of the Code of Civil Procedure by respondent nos. 7 to 9 and the same has been tagged and heard at the time of admission by this Court. The first point was raised regarding the objection being taken by the office regarding maintainability of the present revision petition. 7 to 9 and the same has been tagged and heard at the time of admission by this Court. The first point was raised regarding the objection being taken by the office regarding maintainability of the present revision petition. It is the observation of the office that when the suit has been decided on the preliminary issue and dismissal had been recorded then only appeal lies under Section 96 of the Code of Civil Procedure and there is no scope of filing of any revision petition under Section 115 of the Code of Civil Procedure. The same has been reiterated from the side of the opposite parties also. It is true that if a dismissal has been recorded in a suit, the same is to be construed to have dismissal having a decree attached to it and only appeal is maintainable under Section 96 of the Code of Civil Procedure. But if such dismissal has been recorded improperly having the jurisdictional error on it then the revision petition may be held maintainable in exceptional case. 4. 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. 5. 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. 5. On merit it appears that the learned court below had considered only the peremptory part of the relief claimed in the suit. There are other reliefs claimed in the suit also and the same had not been considered by the learned court below. If there were several reliefs claimed in the suit and that some of the claims or reliefs claimed may not be maintainable in the present form of the suit but by that way the whole of the suit cannot be held to be not maintainable if some reliefs left out can be gone into adjudication for the purpose of grant of relief or otherwise to the inter parties. In the present suit the grievance of the plaintiffs is that although in the earlier partition arrived at between the parties a passage had been granted exclusively in favour of the plaintiffs and a permissive right was given by the plaintiffs to the defendants although not mentioned in the partition deed then whether such permissive right can be sold by the original defendants to the purchaser-defendants or not. That issue depends on the factual aspect of the matter. The question of maintainability on that issue depends upon factual aspect and when that relief has not been considered at all in dismissing the suit as a whole definitely the impugned order is bad on factual aspect also. Technically, the impugned order is without jurisdiction as already mentioned above and factually also the impugned order cannot be sustained in law as some of the reliefs had not been considered by the learned court below within the purview of the maintainability of the suit. 6. In that way, the whole order is hereby quashed and Title Suit No. 350 of 1998 is hereby revived and is sent back to Sub-Judge-1st, Patna, to proceed according to law.