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2002 DIGILAW 374 (AP)

Kuchi Charumathi Devi v. Gampa Chenchu Ratnamma

2002-03-07

body2002
C. Y. SOMAYAJULU, J. ( 1 ) APPELLANT filed O. S. No, 63 of 1993 on the file of the Court of Senior Civil Judge, khammam, for partition of her half share in the four items mentioned of the plaint schedule, which are said to have been acquired by her father, 1st defendant (1st respondent) is the mother of the plaintiff- appellant, and 2nd defendant (2nd respondent herein) is said to be the son of the concubine of the father of the plaintiff- appellant, 1st defendant died during the pendency of the suit without filing written statement, 2nd respondent filed a written statement contending inter alia that the court of the Senior Civil Judge, Khammam, has no territorial jurisdiction to entertain the suit, because items 1 to 3 of plaint schedule are in Nalgonda District and Item No. 4 of the plaint schedule was not acquired by the father of the plaintiff and is the absolute property of the 1st defendant, and so question of partition of item No. 4 does not arise during the life time of the 1st defendant. An issue relating to the territorial jurisdiction of the Court was framed by the trial Court. ( 2 ) AFTER P. W. 1 was examined in chief in part on 12-8-1994, the suit underwent several adjournments till 2001. In April 2001, 2nd respondent filed a petition under order 14 Rule 2 to decide the issue relating to the territorial jurisdiction of the Court as a preliminary issue, on the basis of the evidence of plaintiff as P. W. 1 in her chief- examination that Item No. 4 of the plaint schedule belongs to the 1st defendant. The learned Senior Civil Judge by his order dated 18-7-2001, on the basis that the plaintiff admitted in her chief-examination that Item No. 4 of plaint schedule is the property of the 1st defendant, and is not the property of the father of the appellant and since the remaining three items of plaint schedule are not within his territorial jurisdiction, he has no territorial jurisdiction to entertain the suit, and directed return of the plaint for presentation in proper Court. ( 3 ) THE contention of the learned counsel for the appellant is that, since the petitioner seeking transfer of the suit to Nalgonda filed by the 1st respondent earlier was dismissed by this Court on the ground that the 2nd respondent who is an influential person at nalgonda, the Court directing return of the plaint to be presented in the Court at nalgonda is improper. It is his contention that 2nd respondent is a very influential person at Nalgonda is likely to influence the witnesses, and so appellant would be put to great hardship if the suit is tried at nalgonda and so the order under appeal is liable to be set aside. It is also his contention that, since the question of territorial jurisdiction is a mixed question of law and fact, the learned trial Judge was in error in deciding that question without giving a full opportunity to the parties to adduce evidence and the order returning the plaint passed in the suit, but not in the petition filed under Order 14 Rule 2 C. P. C. is improper. The contention of the learned counsel for the 2nd respondent is that since the appellant in a suit for partition of the properties left behind by her father, deliberately included item No. 4 of the plaint schedule which admittedly belongs to 1st defendant only to create jurisdiction in the court at Khammam, basing on the admission of the appellant that item No. 4 of the plaint schedule is the self-acquired property of the 1st defendant, the learned senior Civil Judge finding that he has no territorial jurisdiction to entertain the suit cannot be said to be erroneous, more so when 2nd respondent is not claiming any right whatsoever on that item of property. It is his contention that the petition for transfer of the suit to the Court at Nalgonda was not dismissed on the ground that the 2nd respondent is likely to tamper with the evidence and therefore the same has no relevance in deciding the issue relating to jurisdiction. It is his contention that the petition for transfer of the suit to the Court at Nalgonda was not dismissed on the ground that the 2nd respondent is likely to tamper with the evidence and therefore the same has no relevance in deciding the issue relating to jurisdiction. He further contended that in the petition filed by 2nd respondent under order 14 Rule 2 C. P. C. , appellant admitted in her counter that item No. 4 of the plaint schedule was purchased by the 1st defendant, and so it is clear that item No. 4 of the plaint schedule, which admittedly belongs to 1st defendant, was included only to create jurisdiction in the Court at khammam, and as such the order under appeal needs no interference because a court can order return of the plaint at any stage of the suit. ( 4 ) THE fact that the order returning the plaint was passed in the suit but not in the petition filed under Rule 2 of Order 14 CPC is not and cannot be a ground to set aside the order under appeal because as per Rule 10 of order 7 C. P. C. the Court, at any stage of the suit, has power to order return of the plaint for presentation to proper Court. ( 5 ) THE contention of the learned counsel for the appellant that the appellant did not admit that item No. 4 does not belong to her mother has no force, because appellant as p. W. 1 stated "item No. 4 of the plaint schedule is the property of my mother. My mother died intestate. I am the only daughter of my parents. I have no brothers. I have got half share in items 1 to 3 of the plaint schedule, which are the ancestral properties of my father". It is no doubt true that, after appellant gave the above evidence, her counsel took time to further examine her in chief. But in view of the fact that the appellant clearly stated that items 1 to 3 of the plaint schedule are the ancestral properties of her father and admitted that the item No. 4 of the plaint schedule belongs to her mother, it clearly means that item no. 4 is not the property belonging to her deceased father. But in view of the fact that the appellant clearly stated that items 1 to 3 of the plaint schedule are the ancestral properties of her father and admitted that the item No. 4 of the plaint schedule belongs to her mother, it clearly means that item no. 4 is not the property belonging to her deceased father. ( 6 ) AS rightly contended by the learned counsel for the 2nd respondent dismissal of this Court, of the petition for transfer of the suit from the Court of the Subordinate Judge at Khammam to another Court in Nalgonda district, is not and cannot be a ground to set at naught the order under appeal, because as per Section 16 C. P. C. suit relating to immovable property has to be instituted within the local limits of the jurisdiction of the Court in which the property is situated, and as per Section 17 C. P. C. if the immovable property covered by the suit is situated in jurisdiction of different Courts, the suit can be instituted within the local limits of the jurisdiction of any particular court in which the subject matter of property is situated. The suit is filed for partition of four items of immovable property belonging to her father alleging that they are situated in Nalgonda and khammam Districts of which only item no. 4 is situated in Khammam District and the remaining items 1 to 3 are situated in nalgonda District. It is the specific case of the 2nd respondent that the appellant deliberately instituted the suit at khammam, by including item No. 4 though it does not belong to her father but belongs to the 1st defendant exclusively and that he is not claiming a share in item No. 4 of the plaint schedule. Appellant, as P. W. 1, clearly admitted that item No. 4 of the plaint schedule is the exclusive property of the 1st defendant. Since the suit is filed by the appellant for partition of the property belonging to her deceased father into two equal shares, it is easy to see that item No. 4, which exclusively belongs to 1st defendant, is included only to create jurisdiction in the court of the Subordinate Judge, Khammam. Since the suit is filed by the appellant for partition of the property belonging to her deceased father into two equal shares, it is easy to see that item No. 4, which exclusively belongs to 1st defendant, is included only to create jurisdiction in the court of the Subordinate Judge, Khammam. When the appellant clearly admitted in her chief examination that item No. 4 of the plaint schedule exclusively belongs to the 1st defendant, it means that the property does not belong to the father of. appellant. When item No. 4 is the exclusive property of 1st defendant, who is the mother of appellant appellant cannot claim a share therein during the life time of 1st defendant. 2nd Defendant is not claiming any right or share therein. So after the death of 1st defendant there is no impediment for the appellant taking possession of the entire item No. 4. In the circumstances, the Court below holding that it has no territorial jurisdiction to entertain the suit for partition in respect of items 1 to 3, which are not in territorial jurisdiction cannot be said to be erroneous. ( 7 ) THE contention of the learned counsel for the appellant that the 2nd respondent being an employee in the Revenue department wields considerable influence and is likely to tamper with the evidence is not a ground for interfering with the order returning the plaint for presentation to proper Court. The fact that a defendant is influential and can tamper with evidence, by itself, cannot clothe the plaintiff with a right to file the suit in respect of immovable property in a place of his or her choice, that too by including a property which is unconnected with relief claimed in the suit, only with a create jurisdiction in the Court in which the suit is filed. In such case, the remedy, if any, of a party who feels that the other side is likely to influence the witnesses or likely to tamper with the evidence, is to file the suit in the Court of competent jurisdiction and later seek transfer of the suit to another Court. ( 8 ) THE question relating to jurisdiction, no doubt, is a mixed question of fact and law. ( 8 ) THE question relating to jurisdiction, no doubt, is a mixed question of fact and law. In this case items 1 to 3 of the plaint schedule only are the properties of the father of the appellant and item No. 4 of the plaint schedule admittedly is not the property belonging to the father of the appellant. If item No. 4 of the plaint schedule is deleted, since items 1 to 3, are not situate in khammam District, the Court at Khammam will not have jurisdiction to entertain the suit. That is a question of fact. Court not having jurisdiction to entertain the suit can always order return of plaint at any stage. That is a question of law. Therefore the court below ordering returning of the plaint for presentation of the plaint in proper Court cannot be found fault with. ( 9 ) THEREFORE the appeal is dismissed with costs. Both the parties are directed to appear before the Court of the Senior Civil Judge, nalgonda on 01-04-2002.