Pritam Singh Pattar, J. - (1.) THIS is a revision petition filed under section 115 of the Code of Civil Procedure by Jugal Kishore and another defendants against the order dated May 17, 1973 of Shri R. K. Synghal, Sub Judge 1st Class, Amritsar, wherein he decided that it is not a fit case wherein the question of jurisdiction should be treated as preliminary issue.
(2.) THE facts of this case are that Dwarka Dass Plaintiff filed a suit for partition of 1/3rd share of the plot in dispute against Jugal Kishore and Jit Kishore defendants. The suit was contested by the defendants. It was pleaded that the plaintiff had 1/4th share and not 1/3rd share in the property in dispute They also alleged that the property in dispute was agricultural land and it was assessed to land revenue and, therefore, Civil Court had no Jurisdiction to try this suit. On these pleadings of the parties, issues were framed One of the issues was whether Civil Court his jurisdiction to try the suit. After the framing of the issues the defendants made an application under order 14 rule 2, Civil Procedure Code, that the issue regarding the jurisdiction of the Court should be decided as a preliminary issue. This application was contested by the plaintiff. After hearing the counsel for the parties, the Subordinate Judge held that the issue regarding the jurisdiction is not an issue of law, but it is an issue of law and fact and, therefore, it cannot be decided unless evidence is recorded as to the nature of the property. He, therefore, rejected the application of the defendants. Feeling aggrieved, the defendants filed this revision petition in this Court. Order 14, rule 2, Civil Procedure Code, reads as Under : - - where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part there of may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fir, postpone the settlement of the issues of fact until after the issues of law have been determined. Mr. M.L. Kapur, the Learned Counsel for the petitioners relied on Babu Ram and another v. Pakiza Begam, (1972) 74 PLR 848, (a Single Bench decision of this Court) wherein it was held as under : - - Under Order 14 rule 2 Civil Procedure Code, the Court is empowered to try certain issues as preliminary ones There is nothing in this rule, which debars a party from leading evidence on the said issue, because the same has to be tried as a preliminary one. That being so, it cannot be said that an issue, which cannot be decided without leading evidence, can never be called a preliminary one. The mere fact that some evidence has to be led for the determination of those issues is, in my opinion, no reason in law to, direct that they may not be tried as preliminary ones. He contended that the property in dispute is assessed to land revenue and is agricultural and, therefore, the jurisdiction of Civil Court is barred.
(3.) AS against this Mr. D.V. Sehgal, Learned Counsel for the respondent, has alleged that the property in dispute is not agricultural and that it is an industrial plot and it has never been used for agricultural purposes. He maintained that the mere fact it is assessed to land revenue would not go to show that it is agricultural land and according to him on one side of this plot there is a road and on the remaining three sides are factories. To support this contention, he relied on Uttam Chand another v. Khodaya : AIR 1929 Lah. 164 wherein it was held that the mere fact that the land pays land revenue does not make it agricultural land as land revenue would continue to be assessed on land even though it is subsequently included in a village or town. In Partap Singh Kairon v. Gurmej Singh : AIR 1958 P&H 409, it was held that the words, 'shall try' in order 14, rule 2; Civil Procedure Code, is mandatory and is not directory and if there is an issue or issues of law only in a suit and that the case or any part thereof can be disposed of on the issues of law only then the Court has no option but to try those issues an preliminary. In Major S.S. Khanna v. Brigadier F.J. Dhillon : (1964) 66 PLR 115, it was held by the Supreme Court as under : - - The jurisdiction to try issues of law, apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed on the issue of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. In view of the authoritative pronouncement by the Supreme Court in this decision, the law laid down in Babu Ram's cave supra cannot be followed. The law is thus firmly established that the Civil Court has no jurisdiction to try a suit on mixed questions of law and fact as preliminary issues. The Court can try an issue of law along as preliminary issues if the whOle case or any part thereof can be disposed of on that issue. The Court cannot try an issue, which is a mixed question of law and fact, as preliminary issue The question of issue involved in this case is a mixed question of law and fact and it cannot be decided unless the parties lead evidence regarding the nature of property i.e. whether the property in dispute is agricultural land or not. The decision of the trial Court is perfectly correct and cannot be interfered with. It is well -settled law that High Court cannot interfere under section 115 Civil Procedure Code, in the order passed by the lower Court even if the order is right or wrong or in accordance with law or not unless it has exercised its jurisdiction illegally or with material irregularity The order of the Subordinate Judge is perfectly correct and legal and there is no scope for interference. There is no force, in this revision petition and the same is dismissed. There will be no order as to costs. The patties are directed through their counsel to appear in the Court of the trial Court on 7th August, 1975.;