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2017 Supreme(Gau) 910
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
PRASANTA KUMAR DEKA, J.
Sri Amitabha Ghosh & others - Petitioners
Versus
Smti. Kasturi Lahiri - Respondent
CRP 254 OF 2017
Decided On : 25-08-2017
For the Petitioners:Mr. N Dhar Advocate
For the Respondent:Mr. MK Choudhury Sr. Advocate Mr. A Barkataki Advocate
The main legal point established in the judgment is that issues requiring evidence to decide are not pure questions of law and may not be suitable for framing a preliminary issue.
Headnote:
Jurisdiction - Civil Procedure - Section 16, 17 of the CPC - The court discussed the provisions of Section 16 and 17 of the CPC to determine the jurisdiction for a suit involving properties situated within the jurisdiction of different courts. The court held that a suit for partition in respect of immovable properties situated within the jurisdiction of different courts can be instituted in any court within the local limits of whose jurisdiction any portion of the property is situated. The court also found that where immovable property is situated within the jurisdiction of different courts, a suit can be instituted in any court within the local limits of whose jurisdiction any one's property is situated.
Fact of the Case:
The plaintiff filed a suit for various reliefs including declaration of rights, title, and interest in properties, partition, and injunction. The defendants raised objections regarding lack of jurisdiction, misjoinder of causes of action, and limitation. The trial court disposed of the application challenging its jurisdiction and the defendants filed a revision petition against the order.
Finding of the Court:
The court found that the issues raised by the defendants were primarily issues of facts and not pure questions of law. It held that the matters required evidence to decide and rejected the petition seeking to frame a preliminary issue. The court dismissed the revision petition but allowed the petitioners to file other applications for rejection or return of the plaint.
Issues: The main issues were related to the jurisdiction of the trial court, misjoinder of causes of action, and rejection of the petition seeking to frame a preliminary issue.
Ratio Decidendi: The court determined that the issues raised were primarily issues of facts and not pure questions of law. It emphasized that the matters required evidence to decide and rejected the petition seeking to frame a preliminary issue.
Final Decision: The revision petition was dismissed, but the petitioners were allowed to file other applications for rejection or return of the plaint.
1. Heard Mr. N Dhar, learned counsel for the petitioners. Also heard Mr. MK Choudhury, learned senior counsel assisted by Mr. A Barkataki, learned counsel for the respondent.
2. In this revision petition, order dated 14.06.2017 passed by the learned Civil Judge No. 2, Kamrup (M) at Guwahati in Misc. (J) Case No. 830/2016 arising out of Title Suit No. 368/2016 is challenged. The sole plaintiff/ respondent filed the Title Suit No. 368/2016 against the defendants/ petitioners for the following reliefs:-
(1) Declaring and determining the rights, title and interest of the plaintiff and the defendants No. 1, 2 and 3 in respect of the share of each of the plaintiff and the defendants of the Schedule-A to D properties in to four equal shares by metes and bounds;
(2) Partition of the Schedule-A to D properties by metes and bounds as provided under Section 54 and Order XX Rule 18 of the Code of Civil Procedure, 1908 and give separate and specific possession to the plaintiff of her share both in the land and houses standing thereon and the businesses;
(3) Declare that the Schedule – A property is a part of the composite property exclusively owned by Late Benoy Kumar Ghosh and that the mutation thereof in favour of the defendants No. 1 and 2 is non est, not valid and not binding and needs to be subject to ¼th partition between the contesting parties;
(4) Declare that the reconstitution of the partnership firm, R.L. Ghosh and Sons property is non est, not valid and not binding and needs to be the subject to ¼th partition between the contesting parties;
(5) Declare that the unregistered partnership businesses are in fact proprietary concerns been reconstituted merely for taxation purposes and accordingly permit partition of the entire 100% of the said businesses amongst the deceased father’s legal heirs;(6) Declare that the Probate dated 27.05.1994 in favour of the defendant No. 1 will have no affect or bearing on the right of the plaintiff over the Schedule – C property;
(7) Pass a decree of rendition of accounts with direction to the defendant No. 1 to produce and submit in the Court the accounts, corresponding tax returns and details of money so collected and retained by the defendant No. 1 by way of income, profit or otherwise from the income of the plaint schedule properties and share of profit out of the Partnership Firms and for realisation of the amount of money as might be determined upon rendition of accounts in favour of the plaintiff;
(8) Pass a decree for appointment of a receiver of the plaint schedule properties;
(9) Pass a decree for appointment of an expert person with sufficient accounting knowledge, such as a Chartered Accountant to inspect the accounts and use his knowledge and expertise to determine the details of money collected and retained by defendant No. 1 and undertake the formal valuation of the businesses;
(10) Grant a permanent injunction to restrain the defendant No. 1 from alienating the plaint schedule properties and to restrain from changing the nature and character of the plaint schedule properties in any manner whatsoever before partition, as the suit properties are not yet partitioned;
(11) Permanent injunction restraining the defendants from operating and managing or reconstituting the purported unregistered partnership businesses;
(12) Temporary injunction in terms of the prayer for permanent injunction;
(13) Mesne Profit of Rs. 37,31,359/- (Rupees Thirty seven lakhs, thirty one thousand three hundred and fifty nine) only from the date of demise of Late Benoy Kumar Ghosh till July 2016;
(14) Grant future Mesne Profit at the same rate as claimed above during the pendency of the suit;
(15) Grant of preliminary decree for partition and mesne profits;
(16) Appoint Local Commissioner (s) for suggesting the ways and means of valuing the plaint schedule properties and effecting partition between the parties;
(17) Pass a final decree for partition and separate possession of the plaint schedule properties;
(1
