Territorial jurisdiction must be determined as a preliminary issue before trial in partition suits to avoid non-est judgments.

JUDGMENT

(Dated: 27^th November, 2025)

This original petition is filed by the petitioners challenging the order dated 05.12.2024, passed by the Additional Sub Judge-I, Ernakulam, in I.A. No.17 of 2024 in O.S. No.76 of 2018, for having rejected the application filed by the petitioner/defendants under Order

14 Rule 1 and 2 read with Section 151 of C.P.C.

2. Heard the arguments of the learned counsel for the petitioners, the counsel for the respondents, and perused the records.

3. The case of the petitioners before the Trial Court is that the respondents filed a suit against the petitioners for the partition of A, B, C, and D schedule properties. The defendants appeared and filed a written statement contending that the ‘B’ schedule property is the self- acquired property of the 2^nd defendant; therefore, it is not partible, and the ‘B’ schedule property is situated within the jurisdiction of the Civil Court at Ernakulam, whereas the remaining other properties are situated outside the jurisdiction of Ernakulam Court. It is also contended that the Court at Ernakulam does not have any territorial jurisdiction to try the suit. Therefore, the plaint ought to be returned to the plaintiff to file the suit before the proper court. The petitioner previously raised similar issue which was rejected by the Sub Court, then the defendant filed a Civil Revision Petition before the High Court in C.R.P. No.248 of 2024, which came to be dismissed, later a review petition filed by the petitioners/defendants, which was allowed by the High Court and remitted the matter back to the Trial Court to consider the point of territorial jurisdiction as preliminary issue. After remanding the matter, the defendant filed the application under Order 14 Rule 1 and 2 of C.P.C., to record the evidence, firstly, only on the question of whether the plaint ‘B’ schedule property is to be considered for partition or not, and consequently, decide the issue whether the court has territorial jurisdiction to try the other issues in the suit. But, the Trial Court rejected the plea, posted the matter for trial, contending that issues shall be answered together only after the trial, and it cannot be a preliminary issue. The Trial Court dismissed the application filed by the petitioner.

Hence, the petitioners/ defendants are before this court.

4. The learned counsel for the petitioners has strenuously contended that the order passed by the Trial Court is against the order passed by the High Court in the review petition, where the High Court directed to consider the territorial jurisdiction of the court as a preliminary issue. But, the trial Court has stated, all the issues should be answered together as not a preliminary issue. Therefore, it is contended that, it is nothing but against the order of the High Court, and also the judgment passed by the Supreme Court, in the case ofKiran Singh and Others v. Chaman Paswan and Others , reported in (MANU/SC /0116/1954); and Athmanathaswami Devasthanam v. Gopalaswami Aiyangar , reported in (MANU/ /SC/ 0236/1963), hence, prayed for allowing the petition, and direct the trial Court to consider Issue No.1 as a preliminary issue, and the evidence shall be adduced by the plaintiff only in respect of ‘B’ schedule property, and therefore, prayed for allowing the petition.

5. Per contra, learned counsel for the respondents has strenuously objected the petition and supported the order passed by the Trial court. It is contended that all four properties involved in the suit, all the four properties shall be considered upon all issues in the suit, and the properties cannot be bifurcated, and give any sep