(1.) The fats necessary to appreciate the point of law involved in this second appeal are these:
(2.) One Chuhar Singh bequeathed 71 bighas 7 biswas of land & one house in favour of his daughter Mt. Jit Kaur by a regd. will dated 22-3-98. He had also sold certain land to Sher Singh & Ors. for Rs. 1600 on 4-3-2000. Kehar Singh & Ors. collaterals of Chuhar Singh in the third degree brought a suit for possession of the land & the house on the ground that the property was ancestral & that Chuhar Singh had no right to dispose it of by will or otherwise. This was denied by the defts. & the following four issues were framed in the case:
1. Is the property in dispute ancestral qua the pltf. O.P. on pltfs.
2. Are the pltfs. collaterals of Chuhar Singh deceased O.P. on pltfs.
3. Are the alienations of mtge, and sale in favour of Zora Singh, Bhajan Singh, Arjan Singh, Sarjan Singh, Gurdial Singh, Bhagwan Singh, Sher Singh. Mehar Singh, & Zora Singh effected for legal necessity O.P. on defts. (mentioned in this issue respectively).
4. Is the will in favour of Mr. Jit Kaur Valid O.P. on Mt. Jit Kaur.
(3.) On 29th Poh. 2002 the trial Ct. without deciding any of the other issues dismissed the suit on issue No. 1 holding that the land was not proved to be ancestral. Pltf.'s appeal against this decision was accepted by the Dist. J. on 7-3-2004, who found the land to be ancestral & remanded the case for decision on rest of the issues to the trial Ct. Since no clear finding regarding the ancestral nature or otherwise of the house had been given the Dist. J. further directed that that should also be decided. The trial Judge then came to the conclusion that the house also was ancestral qua the pltfs. & that the will was ineffective. The suit was consequently decreed. As regards the alienations it was found that they were not effected for valid necessity. Two separate appeals against this decision were filed, one by the alienees & the other by Mt. Jit Kaur. The first one was compromised & the second accepted so far as it related to the house which in the opinion of the Dist. J. was not proved to be ancestral. The appeal with respect to the land, which had already been held to be ancestral, was dismissed because the Dist. J. agreed with the finding of the trial Ct. to the effect that the will was invalid. This is now an appeal by Mt. Jit Kaur in which she wants to contest the finding regarding the ancestral nature of the land. As already observed the land was held to be ancestral by the Dist. J. in his order dated 7-3-2004 by which the case was remanded to the trial Ct. for fresh decision. A preliminary objection is taken by the counsel for the resp. that that order was appealable & no appeal having been filed by Mt. Jit Kaur the decision had become final as provided by Section 105, Sub-clause (2), Code of Civil Procedure. The counsel urged that the order of remand fell under Order 41, Rule 23 & was appealable under Order 43, Rule 1(u). What he means to say is that if Mt. Jit Kaur wanted to contest the finding of the Dist. J. to the effect that the land was ancestral she must have filed an appeal to the H.C. &. since no appeal was filed the question could not be agitated in this appeal. Mr. Kishori Lal refutes this objection by arguing that since the order of remand could not be made under Order 41, Rule 23 it should be taken to have been made in the exercise of inherent powers of the Ct. Under Section 151, Code of Civil Procedure. An order under this section being not appealable Mt. Jit Kaur could not go in appeal against that decision of the Dist. J. He, therefore, contends that the propriety of that decision can be questioned in the present appeal. It is conceded that if an appeal against that order was competent the finding arrived at could not now be questioned. The dispute, therefore, clinches to this, was the order of remand, dated 7-3-2004 appealable. It is obvious that if the order was one under Order 41, Rule 23 an appeal against it lay under Order 43, Rule 1, but if on the other hand it was an order Under Section 151 no appeal against it was competent. Mr. Kishori Lal argues that under Order 41 Rule 23 the case could be remanded only if the trial Ct. had disposed of the suit upon a 'preliminary point' & that since the case had finally been disposed of on merits the dismissal of the suit did not rest on a preliminary point. A preliminary point, according to him, only means a point of law on which the final decision of a case is based or a technical objection regarding the maintainability of a suit. Dismissal of the suit, he stresses, on the ground of the property having been found to be non-ancestral, did not amount to a decision on a preliminary point. The authorities cited by him, however, do not help him in placing such a restricted interpretation on the term 'preliminary point' used in the rule. In Madurai Chetty V. Babu Saheb, 1920 0 AIR(Mad) 859, the D.B. accepting the definition propounded in Anr. judgment of the same H.C. Ramachandra V. Hazi Kassim, 1893 16 ILR(Mad) 207 observed that 'prima facie the expression connotes a determination not affecting the merits of the case". The facts of the case are not given with much of detail & it cannot clearly be gathered from the report as to what was the particular point on which the decision of the trial Ct. was based. In Central Bank of India Ltd., Kasur V. Thakur Das Tulsi Ram, 1933 AIR(Lah) 135 two cross-suits had been finally disposed of by the trial Ct. dismissing the one & decreeing the other. In the two appeals filed by the party aggrieved the first appellate Ct. allowed both the plaints to be amended & sent back the cases for re-decision. On an appeal against the remand order it was held that the Dist J. must have exercised his inherent powers Under Section 151 in making the order although he had not specifically mentioned the provisions of law under which he acted. It was not disputed that the decision of the trial Ct. was not based on any preliminary point. Karuppanna Pillai V. Ethumalai Pillai,1927 14 AIR(Mad) 859 was again a similar case in which after the trial Ct. had decided the suit on merits the first appellate Ct. allowed an amendment of the plaint & remanded it for fresh decision. In Municipal Committee, Abohar V. Megh Raj, 1935 AIR(Lah) 161, after a final decision by the trial Ct. on all the points involved in the case the Dist J. re-drafted one of the issues & remanded it for re-decision after recording evidence on the issue as framed afresh. It was hold that the order of remand could not be legally made under Rule 23 of Order 41, Code of Civil Procedure & since it was an order Under Section 151 no appeal was competent. The order, however, was set aside by the H.C. exercising its revisional powers Under Section 115. The cases cited are all distinguishable & in none of them it was observed that a 'preliminary point' meant only a point of law or some technical defect in the frame of the suit. I see no valid reason to place such a restricted interpretation, & in my view a preliminary point means a point the decision of which is sufficient to dispose of the whole suit without the necessity of deciding other points involved in the case. It may be one of fact or of law. It would include a point which relates to the cause of action for the pltf. or his locus standi to bring the particular suit. In the present case the pltfs. could impugn the alienations or the will only if they could prove that the subject-matter thereof was ancestral qua them. If they failed in this, validity of the dispositions need not have been gone into. The trial Ct. found that the land had not been proved to be ancestral & without discussing or deciding the issues relating to necessity of the alienations or validity of the will dismissed the suit. On the interpretation that I place, & which I think is more reasonable, the trial Ct. must be consd. to have decided the suit on a preliminary point & the Dist. J. was, therefore, within his rights to act under Order 41, Rule 23. I am supported in this view by a number of authorities of the different H. Cts. in India. Jiwa Singh V. Khazana, 56 PunLR 1908, was a case decided under the old Code of 1882 in. which the equivalent provision of law was Section 562, Code of Civil Procedure. The facts of that case were almost similar except that the objection to the locus standi of the pltf. to challenge the alienation was that the alienor had adopted a son who was his next heir & in whose presence the pltfs. had no right to sue. The trial Judge without going into the question of necessity for the sale, for which purpose the case was remanded by the first appellate Ct. dismissed the suit holding that the alienor had adopted a son & that the suit was not maintainable in the presence of the adopted son. On appeal to the H.C. against the order of remand it was urged that the order was erro. neous because it was not warranted by the terms of Section 562. Shah Din J. who delivered the judgment of the D.B. to which Rattigan J. agreed, observed that the question of the locus standi of the pltfs. to contest the sale was a preliminary point under the section even though the point had to be decided on the evidence led by the parties on the factum of adoption which also was disputed. A plea regarding the locus standi of a pltf. to bring a suit was considered similar to a plea of limitation, an adverse decision on which is always consd. to be a decision on a preliminary point, & it was held that in both cases, if the plea is accepted, the result is the same viz. that the (sic). suit is dismissed as being not maintainable. A. F.B. of the Madras H.C. in Veetil Raman Nayar V. Krishnan Nambudripad, 1922 AIR(Mad) 505 defined a preliminary point as a point which when decided in the way in which it was in fact decided, determines the result of the suit. Accepting this definition as correct & binding a D.B. of that Ct. in Seenayya Reddi V. Mangamma, 1927 AIR(Mad) 1159 arrived at the conclusion that a decision adverse to the pltf. regarding her right to claim maintenance in a suit for maintenance was one on a preliminary point & that a remand order by the Dist. J. for decision on the rest of the issues involved in the case was rightly made under the said rule In Khuda Bakhsh v. Ata Mohammad, 1942 AIR(Lah) 135 the trial Ct. accepted the deft's. plea that he was the sole owner of the property which the pltf. alleged to be under mtge. & dismissed the redemption suit. On first appeal it was found that the pltfs. were entitled to claim redemption & since the trial Ct. had given no finding on the question of compensation which was claimed by the defts. on account of certain improvements made by them on the mortgaged property, the case was remanded for a decision on the objection. Bhide J. rejecting the preliminary objection that the appeal was not competent as the remand order should be consd. to have been made in exercise of the inherent powers Under Section 151, Code of Civil Procedure observed that a preliminary point does not necessarily mean a point collateral to the merits of the case but includes any point whether of fact or law, the decision on which renders the decision of other issues arising in the case unnecessary.;