The court has the discretion to try an issue of law relating to jurisdiction or bar to suit as a preliminary issue before framing other issues under Order XIV Rule 2 of the CPC, but it is not mandatory.

1. This revision application is directed against the order dated 21-4-1977 passed by the Subordinate Judge, 2nd Court, Dhanbad, in Title Suit No. 32 of 1975 refusing the prayer of the petitioner to decide the preliminary issue that the suit was barred under the provisions of S.66(1) of the Civil P.C. (hereinafter referred to as "the Code").

2. It is not disputed that opposite party Nos. 1 to 4 and the petitioner are full brothers, being the sons of late Sushil Kumar Chandra whose father was Indra Narain Chandra. It is also not disputed that Sushil Kumar Chandra died during the lifetime of his father, Indranarain Chandra. Opposite party Nos. 1 to 4 instituted Title Suit No. 32 of 1975 for partition of their 4/5th share in the property mentioned in Sch. A to the plaint. The remaining 1/5th share, according to the opposite party-plaintiffs, belonging to defendant-petitioner. It is also not disputed that the suit property had been purchased at a Court sale in the name of the petitioner (defendant No. 1). It was the further case of the plaintiffs-opposite party that the suit property had been purchased by Indra Narain Chandra, the grandfather of the petitioner in the name of the petitioner (defendant No. 1) since he was at that time the only other adult male member in the family. It was also asserted by the plaintiffs opposite party that the suit property was joint family property and after the death of Indra Narain Chandra in 1931 has been all along in possession of the five brothers, namely, the plaintiffs (opposite party Nos. 1 to 4) and petitioner-defendant No. 1.

3. In his written statement, the defendant-petitioner denied the aforesaid allegations and resisted the claim of the plaintiffs, amongst other grounds, on the ground that they were not entitled to maintain the suit in view of the provisions of S.66(1) of the Code. One of the issues framed in the suit was whether the suit was barred under the provisions of S.66(1) of the Code. The petitioner-defendant No. 1 by an application dated 21-4-1977 prayed for determination of the above issue as a preliminary issue in the suit. The prayer of the petitioner-defendant No. 1 was disallowed by the learned Subordinate Judge by the impugned order. Defendant No. 1-petitioner has, therefore, come up in revision before this Court.

4. Learned counsel for the petitioner has contended that the suit property was admittedly purchased in a court sale in the name of the defendant (petitioner) alone and it was he, who, held the sale certificate granted by the Court in respect of the suit property. Obviously, therefore, defendant No. 1 alone was the certified purchaser within the meaning of S.66(1) of the Code and the plaintiffs-opposite party could not, therefore, lay any claim to the property on the ground that the purchase had been made by Indra Narain Chandra through whom the plaintiffs claim. According to the learned counsel for the petitioner such a claim of the plaintiffs-opposite party was barred under the specific provisions of S.66(1) of the Code. In the circumstances, according to the learned counsel for the petitioner, the Court below ought to have decided preliminarily whether the suit was barred under the provisions of S.66(1) of the Code in accordance with the provisions of sub-rule (2) of R.2 of O.XIV of the Code.

5. Mr. S.K. Mazumdar, learned counsel appearing on behalf of the opposite party has, on the other hand, contended that the impugned order does not require any interference firstly because the provisions of sub-rule (2) of R.2 of the O.XIV of the Code are not mandatory and secondly according to the facts averred in the plaint, the plaintiffs-opposite parties had laid claim to the suit property not merely on the ground that the property had been purchased on behalf of the certified purchaser, defendant No. 1 as also on behalf of the other grandsons of Indra Narain Chandra. The plaintiffs claim was mainly based on the allegation that the acquisition of the property