Rajiv Narain Raina, J. - (1.) THE petitioners are the defendants in the suit for declaration challenging the registered sale deed dated 29th August, 2011 executed by defendant No. 1 in favour of the plaintiffs and defendants No. 2 to 4 of agricultural land measuring 17K -3M being 1/5th share out of the total land measuring 85K -17M comprised in land described in the suit situate in the revenue estate of village Nizampur, Hadbast No. 331, Sub -Tehsil Sadhaura, Tehsil Bilaspur, District Yamunanagar as per jamabandi for the year 2006 -07 praying that the sale deed be declared illegal, null and void and induced by fraud and mis -representation, coercion and undue influence and in breach of the plaintiffs' right to co -parcenary property which were claimed to be ancestral in nature and joint Hindu Family property. The relief of permanent injunction was claimed restraining defendants No. 2 to 4 from selling, mortgaging or alienating the suit property or to mutate it in the name of any person. The defendants contested the suit by filing a written statement where they inter alia raised a preliminary objection as to the maintainability of the suit asserting that the plaintiffs lack locus standi to sue as they were neither owners nor in possession of the suit land. It was asserted that defendant No. 1 is not of sound disposing mind and being an exclusive owner in possession of his share in property, had a right to transfer his land by way of a sale deed, release deed or any other deed of conveyance when he executed the sale deed in favour of defendants No. 2 to 5.
(2.) IN order to further this moot point the defendants filed an application under Order 14 Rule 2 CPC read with Section 151 CPC to treat the issue of maintainability of the suit as a preliminary issue and to decide it accordingly without putting all the issues to trial simultaneously. This application has been dismissed by the learned Civil Judge (Junior Division), Bilaspur, Yamunanagar by his order dated 1st August, 2014 to challenge which this petition has been filed. Learned trial Court has observed while rejecting the application that while the suit turns around the assertion of the plaintiffs that defendant No. 1 is a lunatic and a person of unsound mind and being mentally unsound he could not have transferred the suit property in favour of defendants No. 2 to 4 who are the daughters -in -law of his brother, the defendant No. 5 is a matter of evidence and proof. The Court has read the sale deed from where it has observed that sale consideration did not pass while conveying the suit property in favour of the vendees and this is the reason for challenging the sale deed as one made by a person under an incapacity to transfer a valid title or execute an instrument having legal force. On the other hand, the defendants have stoutly refuted the allegations and have asserted that defendant No. 1 Sadhu Ram is hale and hearty.
(3.) THE dispute tried to be raised at the inappropriate interim stage of the suit is whether defendant No. 1 was legally capable of transferring the land while the plaintiffs assert that in order to show whether defendant No. 1 is the person of unsound mind, it is necessary that he should be produced before the Court and then the real truth will come out as though the court is a medical board or a psychiatrist. On this plea the trial court has well reasoned that the question of maintainability of the suit itself depends upon evidence and there is no reason to try it as a preliminary objection and has dismissed the application.;