ABU SALEH KHAN Vs. ABDUL KARIM KHAN

JUDGEMENT

(1.) The petitioners have instituted O.S.No.696/2008 in the Court of Prl. Civil Judge, Mangalore, D.K., to pass a decree for partition and separate possession of the plaint schedule properties against the defendants. Suit has been contested by filing written statement. Issues have been raised on 04.02,2010. A Memo was filed by defendant No. 1, on 27.03.2010, to decide issue Nos. 8 and 9 as preliminary issues. The said Memo was opposed by the plaintiffs by filing statement of objections on 03.04.2010. The trial Judge having allowed the said Memo and decided to treat the issue Nos. 8 and 9 as preliminary issues vide 05.11.2012, this writ petition was filed.

(2.) Sri. S. Vishwajith Shetty, learned advocate, contended that issue Nos. 8 and 9 cannot be treated and decided as preliminary issues, since the same are not pure questions of law. He submitted that the suit having been instituted to pass a decree of partition and separate possession and the plaintiffs being in joint possession and enjoyment of the suit properties, have valued the suit properties for the purpose of payment of court fee, under Sec. 35 of the Karnataka Court fees and Suits Valuation Act, 1958. Learned counsel contended that the evidence of PW. 1 having been recorded in part, the Trial Judge has committed material error and illegality in passing the impugned order.

(3.) Sri. G. Ravishankar Shastry, learned advocate, on the other hand, made submissions in support of the order passed by the learned trial Judge to decide the issue Nos. 8 and 9 as preliminary issues. He submitted that the impugned decision being in consonance with settled principles of law, no interference is called for.