Sangeet Lodha, J. - (1.) THIS petition is directed against order dated 18.1.14 of Civil Judge (J.D.) No. 1, Jodhpur, whereby an application preferred by the petitioners under Order XIV Rule 2 CPC for decision of the issue No. 4, 5 & 6 as preliminary issues, stands rejected.
(2.) THE relevant facts are that the respondents -plaintiffs preferred a suit for permanent injunction, in respect of a plot situated at Pratap Nagar, Jodhpur. The respondents -plaintiffs claimed ownership over the disputed plot on the strength of a Will executed by their father in their favour. The suit is being contested by the petitioners -defendants by filing a written statement thereto. On the basis of the pleadings of the parties, the trial court framed the issues. The issue No. 4, 5 & 6 relevant to present controversy as framed by the trial court, read as under: During the pendency of the petition, the petitioners preferred an application with the prayer to decide the issue No. 4, 5 & 6 as preliminary issues.
(3.) AFTER due consideration, the trial court arrived at the finding that whether the plaintiffs are in possession of the disputed plot or not is a question of fact to be determined on the basis of the evidence to be led by the parties and therefore, the issue No. 4 cannot be considered to be a issue of law. Similarly, the court observed that before decision of issue No. 6, it needs to be established that a dispute regarding the ownership and possession in respect of the disputed plot had already arisen before filing of the suit. Regarding the issue No. 5, the court observed that the issue No. 5 is a mixed question of law and facts and therefore, cannot be determined as preliminary issue. Accordingly, the application preferred by the petitioners stands rejected by the order impugned. Hence, this petition.;