1. This appeal is directed against judgment and decree dated 29.02.2012 passed by the Court of Principal District Judge, Ramban whereby and whereunder suit of the appellant-plaintiff came to be dismissed on the ground of being not maintain able. 2. Learned counsel for the appellant argued that issue No.3 is a mixed question of fact and law and was to be gone into during the trial but the trial Court has wrongly treated it as preliminary issue and dismissed the suit. 3. Learned counsel for respondents-defendants has argued that issue in ques tion was not a mixed question of fact and law and trial Court has rightly decided the same by treating it as preliminary issue and dismissed the suit. 4. The appellant-plaintiff has filed suit for declaration to the effect that the document styled as Irrevocable General Power of Attorney executed by defendant No.1 in favour of defendant No.2, in fact, is a sale transaction having taken place between the defendants and the said document has been executed only with an intention to defeat the rights of the plaintiff. 5. Section 4 of the Right of Prior Purchase Act, 1993 (1936 A.D.) (for short, 'Act') gives power to the Court to hold that alienation purporting to be other than sale is in effect a sale. It is a fact that suit came to be filed for declaration and Right of Prior Purchase Act. It is specifically averred that in fact deed is sale. 6. In terms of Order VI of Code of Civil Procedure (for short CPC), the plaintiff has to take all the grounds in the plaint and defendants have a right in terms of order VIII CPC to specifically deny all the averments made in the plaint. In the instant case, plaintiff has specifically averred the facts and the defendants have denied the same, thus are mixed questions of fact and law and are to be gone into during the trial. 7. In Mayar (H.K.) Ltd. and others v. Owners and Parties, Vessel M. V. Fortune Express and others reported in 2006 AIR SCW 863 (Vol.1), it is held at para No 11 as under :- "11. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint.
From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order VII Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants." 8. Applying test in the instant case, trial court has wrongly treated the issue supra as preliminary issue was to be tried with other issues. 9.
Applying test in the instant case, trial court has wrongly treated the issue supra as preliminary issue was to be tried with other issues. 9. In Ramesh B. Desai and others v. Bipin Vadilal Mehta and others reported in 2006 AIR SCW 3768 (Vol.4), it is held at para No.12 as under:- (12) Sub-rule (2) of Order XIV Rule 2 CPC lays down that where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force. The provisions of this Rule came up for consideration before this Court in Major S.S. Khanna v. Brig. F.J. Dillon AIR 1964 SC 497 , and it was held as under.-"Under 0.14 R. 2 where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues.
The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court: not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit." Though there has been a slight amendment in the language of Order XIV Rule 2 CPC by the Amending Act, 1976, but the principle enunciated in the above quoted decision still holds good and there can be no departure from the principle that the " Code confers no jurisdiction upon the Court to try a suit on mixed issue of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue. In Smt. Aruna Kumari v. Ajay Kumar reported in SLJ 1990 J&K 43, it is held as under:- "Civil P.C. Or 14 R 2: When can an issue be treated and tried as preliminary issue-In order treat an issue as a preliminary issue two conditions have to be satisfied as a preliminary issue-firstly it has to be an issue of law and secondly it must pertain to the jurisdiction of the Court to try the suit or pertain to institution of the suit itself by reason of a bar created by law-while exercising the jurisdiction of treating an issue preliminary court has to take intention of legislature into account which is clear that the disposal of suit should be expedited suit for dissolution of marriage on the ground of cruelty-objection regarding jurisdiction raised by the defendant by stating that the parties have not last resided at Kathua where the suit has been instituted-Only two issue one regarding fact of cruelty and other regarding jurisdiction framed by Court-Court not treating issue regarding jurisdiction as preliminary-held where issue of jurisdiction is a mixed question of law and fact, requiring evidence to be recorded by both the sides, same cannot be treated as a preliminary issue." 10.
At the time of preliminary stage, in order to determine as to whether the civil court has jurisdiction or whether the suit is maintainable, the averments made in the plaint are to be taken into consideration. I am fortified in this view by a judgment of the Apex Court in 2006 AIR SCW 863 (supra). 11. I have gone through The Law of Pre-emption in the Punjab Sixth Edition'. In Rule 8 (g) of Chapter-VI of it, it is provided that questions of fact and law are to be gone into during the trial. It is apt to reproduce here as under:- "(g) The Court must decide as to the real nature of the transaction upon all available material, including the document itself. (i) P.R. 45 of 1895. Roe, J. The Court should judge of the nature of the transaction, not merely from the use of any particular word in the deed recording their contract, but from a fair and reasonable view of the nature of the terms agreed upon. (i) P.R. 100 of 1895 F.B. The court must decide as to the real nature upon all the available material, including the terms of the document itself. Cf. also P.R. 82 of 1915 and C.A. 2918 of 1918." 12. In Ghulam Hassan and others v. Mohd. Bat and others reported in 43 P.L.R. J&K 305, it is held as under :- "That paragraph lays down "Nothing in this section shall prevent a court from holding that an alienation purporting to be other than a sale is in effect a sale." Now it is not denied that this transaction will fall into the category of some kind of alienation. It is admitted before us and indeed the record bears ample evidence of this fact that mutation had taken place on the basis of this oral sale and the property had passed from the Vendor to the vendees and from them to the transferee. It was, therefore, an alienation as contem plated in this paragraph. Mr. Faruqi will, however, give to the word alienation as used in this section a very restricted sense. His argument is that alienation should be read pari passu with foreclosure of the right to redeem mentioned in the first paragraph.
It was, therefore, an alienation as contem plated in this paragraph. Mr. Faruqi will, however, give to the word alienation as used in this section a very restricted sense. His argument is that alienation should be read pari passu with foreclosure of the right to redeem mentioned in the first paragraph. For precisely the same reason we hold that alienation cannot be given such a restricted sense; because if the legislature thought fit to particularly denominate a category of transaction in the first paragraph, it is unreasonable to assume that they would use a more general term for describing the same category in the succeeding paragraph. Because they used a general term they must mean a general sense and in the general sense alienation of the kind now in dispute i.e., incompleted sale in terms of section 138 of the Transfer of Property Act would naturally lie. We, therefore, are of the opinion that the fact that it was an oral sale will not defeat the plaintiff's right and that the transfer in favour of the defendants is an alienation which would come within the four corners of the Prior Purchase Act. 13. In J&K Law Reporter Vol-III 2001, it is held as under:- "In the present case the donor and the donee are not related to each other. The alleged gift is made after the sale of the two plots mentioned above and in the fit deed the price of the land is mentioned. Moreover, Glodhu has stated that if he were to sell this plot of land then there would have been a suit for pre-emption. All these circumstances lead to irresistible conclusion that the alleged gift was a sale and the court below has rightly held it so. 14. In the given circumstances, trial Court has wrongly treated issue No.3 as preliminary issue as it was to be gone into during the trial. Accordingly appeal is allowed and impugned judgment and decree dated 29.02.2012 are set aside and suit is remanded to the trial Court. Parties through their counsel shall cause appearance before the trial Court on 10.01.2013. Thereafter, the trial Court to conclude the trial of the suit as early as possible preferably within a period of one year. 15. Registry to send down the record along with copy of this order to the trial Court forthwith.