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ORISSA HIGH COURT
DEBABRATA DASH, J.
Durgadevi Agarwalla and another – Appellants
Vs.
State of Orissa and others – Respondents
First Appeal No. 11 of 1995
Decided On : 21/02/2014
The provision undoubtedly vests power on the trial Court to take up certain issue as preliminary issue before proceeding to consider other issue as preliminary issue before proceeding to consider other issues in the suit. At the same time, the general provision contained in Order 14, Rule 1 and 2 of the Code rules that the judgment should be pronounced by the Trial Court on all issues. So, considering some issue of the issues as preliminary issues ones is an exception. In order to satisfy as to whether an issue/can be taken up as preliminary issue for the decision as laid down in Sub-rule 2, the Court has to satisfy itself that the issue is one of law only, that is it requires no evidence or a little to be laid down and that decision on the issue would be sufficient for disposal of entire case or a part of the case besides the issues must be touching the jurisdiction of the Court or concerning the bar to the suit created any law for the time being of any force. Once these pre-conditions are satisfied the Court would be justified in trying an issue as a preliminary one postponing consideration of other issues. It is therefore, incumbent on the part of the trial Court to carefully consider the pleadings, the nature of issue which is proposed to be decided as a preliminary issue, the evidence that may be necessary to determine the said issue and whether the whole case or part of the case can be disposed of on the decision on said issue on the question and this has to be done before allowing the prayer of the application to exercise the jurisdiction vested in Order 14, Rule 2 of the Code to try an issue as preliminary one. A comparative reading of Order 14, Rule 2 as it existed earlier to the Code of Civil Procedure (Amendment) Act, 1976 and the one after amendment would clearly indicate that the consideration of any suit and its disposal as a preliminary issue has after the 1976 amendment been made permissible only in a limited case and those are issues of law relating to jurisdiction and bar under any law. Apart from these no issue can be tried as a preliminary issue. The jurisdiction to try issues of law apart from the issues of the fact may be exercised only where in the opinion of the Court, the whole case 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 the suit should be tried by the Court; not to do so especially when the decision on issues even of law depend upon the decisions of issues of fact, would result in lopsided trial of the suit. It therefore follows that where on issue of fact is necessary to be decided before on issue of law comes up for consideration, such issue cannot be taken up as a preliminary issue within the meaning of Order 14, Rule 2 of the Code under the amended provision it is not obligatory on the Court to decide issues relating to jurisdiction or legal bar to limits as preliminary issues. The words ’it may try’ in Rule 2 (2) are clearly indicative of the fact that discretion is given to the Court and no duty is cast upon the Court to decide any issue as preliminary issue.
JUDGMENT :
Being aggrieved by the judgment and decree passed by the Learned Subordinate Judge, Bargarh (as it was then) in Title Suit No-1/1992 dismissing the Suit by rendering a decision on preliminary issue as regards the jurisdiction of the Civil Court in view of the bar contained u/S.16 of the Orissa Prevention of Land Encroachment Act, 1972, the present appeal has been filed by the unsuccessful plaintiffs.
2. For the sake of convenience, to avoid confusion and for proper appreciation, the parties hereinafter are being referred to as they have been arrayed in the trial court.
Plaintiffs as legal representatives of one Late-Jagannath Agrawalla have presented the plaint seeking the relief of declaration of their right, title and interest over the land described in Schedule-A of the plaint(suit land) and for confirmation of possession. Also a permanent injunction sought for restraining the Defendants from going over the suit land and creating any disturbance therein. On account of damage said to have been caused by the Defendants, compensation of Rs.1.5 lakhs is claimed. It is pertinent to state here that during pendency of this appeal, original plaintiff No. 1 died on 19.04.2006 leaving plaintiff No. 2 as sole legal representative who is now prosecuting the appeal.
3. Case of the plaintiffs is that:-
The suit land was owned and possessed by one Ramesh Agrawalla and he was inducted into possession by the landlord Laskhpati Das, Maufidar who had also executed a registered deed for permanent lease in favour of Ramesh Agrawalla on 30.6.1948. So, Ramesh Agrawalla continued to possess the suit land with his other brothers and they executed the registered sale-deed on 16.1.1959 in favour of Sri Keshari Bai and she was delivered with the possession of the same and continued to possess thereafter. Said Keshari Bai then applied for permission to build a residential house and Bargarh Municipality duly accorded the permission for the same on 27.2.1963 in the name of the husband of said Keshari Bai. The construction work began and continued up to plinth area or little more when two rooms were completed in one portion. At that time she faced financial constraints and so had to sale the suit land along with the construction in favour of original plaintiff No-1 and her husband Jagannath Agrawalla by registered sale-deed dt.4.6.1969 for a consideration of Rs.8000/-. The above purchasers being delivered with the possession of the suit land together with the construction by Keshari Bai, the vendor continued as such. Thereafter, original Plaintiff No-1 again made an application to the Bargarh Municipality for permission to complete the construction as there was delay in completion which was also accorded on 19.2.1970 and during that year the construction of the ground floor was completed and so also the first floor. It is stated that a sum of Rs. 5 lakh was spent after the said construction of 6th floors.
4. It is stated by the Plaintiffs that in the year 1971 the land acquisition authority notified for acquisition of land measuring Ac 0.020 Dec out of the Western portion of the schedule plot No-3568. So, the Plaintiff No-1 filed a representation which was accepted by the Government and acquisition was made to the extent of land measuring Ac 0.03 dec. out of that Ac 0.20 dec. as over the said portion the plaintiff No-1 had already made construction spending huge sum. So, ultimately the State Government withdrew from acquisition of said portion of land and accordingly published the notifications in the official gazette on 1.12.1978 and on 2.12.1978.The Plaintiffs claimed their right, title and possession on the basis of above by constructing house over the suit land continuously without any interruption and all along in a peaceful manner. It is also stated that the land has been mutated to the extent of AC.0.08 decimal in her name and the land was surrounded by road on all sides. When such state was continuing, as per the case of the plaintiff, the D
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