IMPORTANT POINT
Jurisdiction in partition suits involving mixed questions of fact and law requires evidence and cannot be determined solely on preliminary objections.

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. 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 specific contention of the 1st respondent is that the