ORDER : (Viju Abraham, J.) : The above civil revision petition challenges the order dated 29.05.2024 in O.S.No.76 of 2018 on the file of the Additional Sub Court-I, Ernakulam. 2. The brief facts necessary for the disposal of the civil revision petition are as follows: The petitioners are defendants Nos.1 to 3 and the 1st respondent is the plaintiff and respondents 2 to 4 are defendants Nos.4 to 6 in the suit. The said suit is filed seeking partition, originally in respect of plaint A and B schedule properties and subsequently amended to incorporate C and D schedule properties. The suit was filed claiming partition of all the properties of one late Nicholas who died intestate. It is contended by the respondents that the said Nicholas did not die intestate and he has executed a Will and by the Will, the properties devolved upon the 2nd petitioner herein (2nd defendant) who is his wife. It is the contention of the petitioners that all the properties other than plaint B schedule property are not within the territorial jurisdiction of the Sub Court, Ernakulam and that B schedule property has nothing to do with late Nicholas and it is scheduled as plaint schedule property solely for the purpose of making a jurisdiction within the Ernakulam court limits to suit the convenience of the plaintiff. Thereupon the issue of territorial jurisdiction was raised by the petitioners and the same was heard and as per the order impugned dated 29.05.2024, the court held that the Sub Court, Ernakulam has territorial jurisdiction to try the suit. It is aggrieved by the same that the present Civil Revision petition is filed. 3. Learned counsel for the petitioners would contend that the Sub Court, Ernakulam has no territorial jurisdiction to entertain the suit in as much as plaint A, C and D properties are all within the jurisdiction of the Chalakkudy and North Paravur Courts and were properties of late Nicholas. 3. Learned counsel for the petitioners would contend that the Sub Court, Ernakulam has no territorial jurisdiction to entertain the suit in as much as plaint A, C and D properties are all within the jurisdiction of the Chalakkudy and North Paravur Courts and were properties of late Nicholas. Plaint B schedule property was originally the property of the 2nd defendant which was obtained by her from her family as per gift deed No.1794 of 1976 of SRO Edappally and after the sale of a portion thereof, the remaining is gifted to her son, the 1st defendant, as per settlement deed No.2995 of 2013 of SRO Edappally, whereas, the 1st defendant has on mortgaging the property availed loan and constructed a semi-covered building thereupon and rented it. Since the above suit is seeking partition of property of late Nicholas, there is no purpose whatsoever to incorporate plaint B schedule property at Edappally, other than somehow to bring it within the jurisdiction of the court at Ernakulam. It is contended that the reliance placed on Sections 16 and 17 of the Code of Civil Procedure, 1908 (in short, “CPC”) cannot be read and understood to take in any property upon which prima facie itself there cannot be any valid claim for the plaintiff at all as B schedule property is not partible and therefore the court at Ernakulam will not have jurisdiction to try the case. Learned counsel for the petitioners would contend that objection as to jurisdiction has been raised at the earliest opportunity as contemplated under Section 21 CPC. 4. The contention of the learned counsel appearing for the 1st respondent, who is the plaintiff, is that plaint B schedule building was constructed using the fund of late Nicholas and the specific contention of the 1st respondent is that as the building in plaint B schedule property was constructed by misutilising the amount in the account of late Nicholas, the plaintiff is entitled for 22.22% rights over the said property. The contention of the 1st respondent is that the building has been constructed by misappropriating the funds of late Nicholas and in view of the above, the question as to whether the said building was constructed misappropriating the funds of late Nicholas and whether the said building and property is partible are all matters to be decided in the suit. The contention of the 1st respondent is that the building has been constructed by misappropriating the funds of late Nicholas and in view of the above, the question as to whether the said building was constructed misappropriating the funds of late Nicholas and whether the said building and property is partible are all matters to be decided in the suit. The specific contention of the 1st respondent is that the said additional property is partible in as much as the building there in has been constructed misutilising the fund of late Nicholas and the said property being situated at Edappally, the Sub Court, Ernakulam has jurisdiction to try the case. 5. The trial court relying on Section 17 CPC held that a suit relating to immovable properties situate within jurisdiction of different courts will lie before any one of the courts and therefore the Sub Court, Ernakulam has territorial jurisdiction to try and dispose of the suit. 6. I have heard the rival contentions of both sides. 7. Section 16 CPC deals with the jurisdiction of the court for the institution of a suit and Section 17 CPC deals with the institution of suit for immovable properties situated within the jurisdiction of different courts. Sections 16 and 17 CPC read as follows: “16. 6. I have heard the rival contentions of both sides. 7. Section 16 CPC deals with the jurisdiction of the court for the institution of a suit and Section 17 CPC deals with the institution of suit for immovable properties situated within the jurisdiction of different courts. Sections 16 and 17 CPC read as follows: “16. Suits to be instituted where subject matter situate— Subject to the pecuniary or other limitations prescribed by any law, suits— (a) for the recovery of immovable property with or without rent or profits, (b) for the partition of immovable property, (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, (d) for the determination of any other right to or interest in immovable property, (e) for compensation for wrong to immovable property, (f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate: PROVIDED that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant, may where the relief sought can be entirely obtained through his personal obedience be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. Explanation.— In this section "property" means property situate in India.” 17. Suits for immovable property situate within jurisdiction of different Courts— Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Court, the suit my be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate : PROVIDED that, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such Court.” So going by the provisions of Section 17 CPC when the immovable property is situated within the jurisdiction of different courts the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property situated. 8. 8. The contention of the learned counsel for the petitioners is that plaint B schedule property is not partible in as much as the said property does not belong to late Nicholas. But the specific contention of the 1st respondent is that though plaint B schedule property is obtained by the 1st defendant from the 2nd defendant, the petitioners have misappropriated the fund of late Nicholas and has constructed a building thereon and therefore the said building and the said property scheduled as plaint B schedule are liable for partition. 9. Order XIV Rule 2 CPC reads as follows: “2. Court to pronounce judgment on all issues.— (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (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 an issue of law only, it may try that issue first if the 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, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue” (underline supplied) Going by the mandate of Order XIV Rule 2 CPC where issues both of law and of fact arise in the same suit, and if the court is of the 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 (i) the jurisdiction of the court, or (ii) bar of the suit and for that purpose the court may postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. Here the only contention raised by the learned counsel for the petitioners is that plaint B schedule property is not a partible property, but the same has been included in the schedule of property only to see that the case could be filed within the jurisdiction of any of the courts in Ernakulam district. But the contention of the learned counsel for the 1st respondent is that said B schedule property is partible in as much as the building thereon was constructed by the 1st defendant misutilising the fund of late Nicholas and therefore she is also entitled for a share of the property. Admittedly, the question of jurisdiction of court is a question of law that could be decided as a preliminary issue, but the issue involved herein is a mixed question of fact and law. Only if the court is able to enter a finding upon evidence that the plaintiff has absolutely no right over plaint B schedule and the contention of the plaintiff that the building in B schedule property has been constructed misutilising the fund of late Nicholas is found to be wrong, then only the court could enter a finding as to the territorial jurisdiction of the court to try the suit. Therefore in the present case the question as to the jurisdiction of the court to try the suit can be determined only after adducing evidence as the same is a mixed question of fact and law, and therefore, the said issue cannot be decided as a preliminary issue. The Apex Court in Ramesh B.Desai and others v. Bipin Vadilal Mehta and others, (2006) 5 SCC 638 has considered the questions which could be determined as a preliminary issue and held that if the question to be determined is a mixed question of fact and law then CPC confers no jurisdiction on the court to decide a mixed question of fact and law unless the facts are clear from the plaint itself and where a decision on an issue of law depends upon a decision of fact, it cannot be tried as a preliminary issue. The Apex Court in S.S.Khanna, Major v. Brig. F.J.Dillon, 1964 KHC 461 has held in paragraph 18 as follows: “18. The third question may now be dealt with. The Apex Court in S.S.Khanna, Major v. Brig. F.J.Dillon, 1964 KHC 461 has held in paragraph 18 as follows: “18. The third question may now be dealt with. By the order passed by the Court of First Instance on the third issue it was held that the suit filed by Dillon was not maintainable. That decision, in our judgment, affected the rights and obligations of the parties directly. It was a decision on an issue relating to the jurisdiction of the Court to entertain the suit filed by Dillon. In any event the decision of the Court clearly attracted cl. (c) of s. 115 Code of Civil Procedure, for the Court in deciding that "the suit was not maintainable as alleged in paragraphs 15, 16, 17 and 18 of the written statement" purported to decide what in substance was an issue of fact without a trial of the suit on evidence. Dillon alleged in his plaint that at the request of Khanna, he had advanced diverse loans (from the funds lying in deposit in the joint account) and that the latter had agreed to repay the loans. The cause of action for the suit was therefore the loan advanced in consideration of a promise to repay the amount of the loan, and failure to repay the loan. By his written statement Khanna had pleaded in paragraph 15 that Dillon had not advanced any money to him and that Dillon had not claimed the amount for himself and therefore he was not entitled to file a suit for recovery of the amounts. By paragraph 16 he pleaded that Dillon having admitted in the plaint that the amounts in suit were to be paid back to the joint account he was not entitled to file the suit. By paragraph 17 it was pleaded that a suit by one joint owner against the other joint owner for recovery of the Joint Fund or any item of the joint fund was not maintainable and by paragraph 18 he pleaded that Dillon could not institute a suit against him because the amount was not repayable. All these contentions raised substantial issues of fact which had to be decided on evidence, and Dillon could not be non-suited on the assumption that the pleas raised were correct. All these contentions raised substantial issues of fact which had to be decided on evidence, and Dillon could not be non-suited on the assumption that the pleas raised were correct. At the threshold of the trial two problems had to be faced : (1) Whether in a suit to enforce an agreement to repay an amount advanced in consideration of a promise to repay the same, the question as to the ownership of the fund out of which the amount was advanced is material ; and (2) if the answer is in the affirmative, whether the fund in fact belonged jointly to Dillon and Khanna. The Judge of the Court of First Instance unfortunately assumed without a trial an affirmative answer to both these questions. Under 0. 14 R 2 Code of Civil Procedure, 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. 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 depend upon the decision of issues of fact, would result in a lop-sided trial of the suit.” (underline supplied) This Court in Thiruvambadi Rubber Co.Ltd. v. Damodaran Nair, 1984 KHC 281, has held that if the issues involved are not purely questions of law but mixed questions of law and fact and the same cannot be decided in accordance with law without recording evidence, said issues cannot be decided as preliminary issues. In view of the facts and circumstances available in the present case and taking into consideration the declaration of law as stated above, I am of the view that the issue involved in the present case as to the territorial jurisdiction to try the case cannot be decided as a preliminary issue in as much as such issue cannot be decided without entering a finding as to whether plaint B schedule property is partible or not. Since the said issue is essentially a mixed question of fact and law, I am of the view that the issue as to whether the court has territorial jurisdiction to try the suit cannot be decided as a preliminary issue. In view of the above, I find no merit in the contentions of the learned counsel for the petitioners and the civil revision petition is accordingly dismissed.