Deliberating on what is to be dealt by Courts under 'preliminary issues', the Tripura High Court held that issues to be determined preliminary would exclusively and purely be on law point in isolation to facts but not mixed question of law and fact.
The Justice T. Amarnath Goud observed that main controversies in a suit cannot be adjudicated as 'preliminary issues' as they require a full fledged trial and leading of evidence.
The Court was adjudicating upon a slew of petitions filed under Section 115 CPC read with Article 227 of the Constitution, challenging an order rejecting the petitioners' plea for dismissal of the partition suit filed by the original-Plaintiffs, respodents herein.
The contention of the petitioners was that possession in a partition suit has to be understood only in the context who, is in actual physical possession; and in the instant case, the pro-forma respondents had taken the plea of adverse possession. It was further being averred that since pro-forma respondents are in possession of the suit property, the partition of the said land is not possible without ejecting them.
"The original partition suit is a building comprising of the proforma respondents in occupation, claiming their title on the basis of the adverse possession, though they have been mentioned as tenants in the plaint, so at this juncture, for amicable partition of the suit land it is required to first eject the pro-forma respondents from the suit properties. The original suit is only for amicable partition of the suit land and cannot be understood to mean a suit for eviction of the pro-forma respondents, which would change the essential character of the suit as one for partition and make it one for ejectment."
It was argued that the partition suit was not maintainable and preliminary issues should have been dealt at first instance, Reliance was placed on Rule-2(2) of Order XIV, CPC which mandates that in a petition, under the said provision, the Court would take the statements made in the plaint, on the face value and thereupon, would proceed to decide the maintainability of the suit.
The defence of the original plaintiffs (respondents herein) was opposed the plea by contending that the pro-forma respondents are merely tenants over schedule land.
The Court stated that it is crystal clear that court has given scope with discretion to decide the suit or cases on the matter of jurisdiction of the court to try the suit or a bar to the suit created by any law for time being in-force provided that the issues to be determined preliminary would exclusively and purely be on law point in isolation to facts but not mixed question of law and fact.
It referred to SC decision in Major S. S. Khanna Vs. Brig. F.J. Dillon, 1963 Latest Caselaw 193 SC, Haridas Das Vs. Smt. Usha Rani Banik & Ors, 2007 Latest Caselaw 535 SC
"To be very specific on preliminary issues, this Court holds the view that Issue which is of legal nature and affects the jurisdiction of Court falling under O-XIV, R-2(2) can be termed as preliminary issue. A factual issue which needs the trial and leading evidence for decision cannot said to be preliminary issue. If decision on the issue of law is depending upon the decision of factual aspects, in that event the Code does not empower the Court to decide that issue of law on framing of preliminary issue."
In background of the above, the Court affirmed the findings of the lower court and observed:
"Hence, this Court finds no infirmity in the findings arrived at by the Court below. Since the petitioners herein has failed to make out the case before the Court below, this Court has no hesitation to say that in the revision, appreciation of the factual issues are not permissible. Accordingly, the instant revision petition stands dismissed."
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