1985 Supreme(MP) 104

G. G. Sohani, J.
Sardar v. Municipal Corporation Ujjain.
S. A. No. 269 of 1975; (J); Decided on 8-2-1985.

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Headnote:Civil P.C., 1908-O.14, R. 2-issues dependent on establishment of certain facts-cannot be decided as preliminary issues.

        This is plaintiffs second appeal arising out of a suit for declaration of the plaintiffs title to the suit land. Briefly the plaintiffs case was that she had acquired Bhumiswami rights in the suit land. The claim of the plaintiff was resisted by the defendants and on the basis of the pleadings, issues were framed by the trial Court. Issue No. 3 regarding the jurisdiction of the trial Court and issue No.4 regarding limitation were, however, treated by the trial Court as preliminary issues and after hearing the parties in that behalf, the trial Court held that the Civil Court had no jurisdiction to try the suit and that the suit was barred by limitation. On appeal, the findings given by the trial Court were upheld. Hence, the plaintiff has filed this second appeal.

        Held: At the time of hearing of this appeal, learned counsel for the parties agreed that in the instant case, the issues regarding jurisdiction and limitation should not have been tried as preliminary issues as the decision of those issues, depended on decision of certain facts. It was, therefore, prayed that the matter be remanded to the trial Court for deciding all the issues including the issues relating to jurisdiction and limitation after recording the evidence of the parties on all the issues. The prayer is justified. I, therefore, allow it. The findings of the Courts below on issues No.3 and 4 are set aside. The trial Court shall decide those issues along with other issues framed by it, after recording the entire evidence of the parties. Appeal allowed.