SUJIT NARAYAN PRASAD, J. - (1.) This writ petition is under Article 227 of the Constitution of India whereby and whereunder order dated 19.07.2018 passed in Title Suit No.229/2012 has been assailed, the petitioner seeking therein prayer to first decide the maintainability of the suit by framing preliminary issue to that effect but the said petition has been rejected vide impugned order, therefore, the instant writ petition has been filed.
(2.) It is the brief facts of the of the case of the petitioner and as per the pleading made in the writ petition is that a suit has been filed by the plaintiff/respondent No.1 herein, for declaration of right, title, interest and possession over the schedule-B lands whereas none of the defendants have any right title and possession over there and the construction of house over schedule-B land, if any made by the defendant, should be demolished through the process of the court and the plaintiff be put in possession. Nowhere appears from the pleading made as to whether the notice has been issued or not, but one petition has been filed by the petitioner who is the defendant No.1 to the suit on 18.09.2015 making therein an objection to the maintainability of the suit on the ground of relinquishment right by the ancestors of the plaintiff and to that effect decree has been passed in Title Suit No.58/84 confirmed in Title Appeal No.34 of 1988 but the trial court has rejected the petition, the suit was decreed against the one Puniya Devi and she filed title appeal for impleadment of ancestors of the plaintiff and the seller of the property and being the judgment debtor an appeal filed by Puniya Devi which was decreed and compromised in terms of the relinquishment of the right but the trial court having rejected the said petition, hence the writ petition.
(3.) Mr. Afaque Ahmad, learned counsel appearing for the petitioner, has submitted that the trial court has committed gross illegality in passing the order by not considering the scope and object under Order XIV Rule 2 of the Code of Civil Procedure which confers power upon the trial court to decide the issue even by way of preliminary issue so that there may not be any frivolous trial.;