Patna High Court - Orders
Apurna Narayan Mishra @ Apurva Narayan ... vs Tribhuwan Mishra & Anr on 14 February, 2013
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.1351 of 2008
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Apurna Narayan Mishra @ Apurva Narayan Mishra, son of late Babuna Mishra @
Suryadeo Mishra, resident of Village- Mahavirpur, P.O.- Pipra Naurangia, P.S.-
Jogapatti, District- West Champaran (Bettiah).
.... Defendant no.1 .... Petitioner/s
Versus
1. Tribhuwan Mishra, son of late Rajendra Mishra, resident of Village-
Mahavirpur, P.O.- Pipra Naurangia, PS- Jogapatti, District- West Champaran
(Bettiah).
......Plaintiff....Opposite Party 1st Set.
2. Madhusudan Mishra, son of late Shobha Misra, resident of Village-
Mahavirpur, PO-Pipra Naurangia, PS- Jogapatti, District- West Champaran
(Bettiah)
....Defendant no.2 .... Opposite Party 2nd Set.
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Appearance :
For the Petitioner/s : Mr. Rajeev Roy
For the Opposite Party/s : Mr. Pathak Dhananjay Kumar
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
7 14-02-2013Heard Mr. Rajeev Roy, learned counsel appearing on behalf of the petitioner and Mr. Pathak Dhananjay Kumar, learned counsel appearing for the opposite party no.1.
This civil revision application is directed against the order dated 23.4.2008 passed by the learned Munsif, Bettiah, district- West Champaran in Title Suit No.16 of 2004, whereby the learned court below has been pleased to refuse the objection raised by the petitioner as regarding the maintainability of the suit before the Munsif on the issue of pecuniary jurisdiction observing that the same would be decided after the filing of the written statement by the defendant.
Section 21 of the Code of Civil Procedure (hereinafter referred to as 'the Code') requires a party to raise an issue relating to territorial or pecuniary jurisdiction at the very first Patna High Court C.R. No.1351 of 2008 (7) dt.14-02-2013 2 instance if it involves the jurisdiction of the court to try any case.
The facts are not in dispute in the present case and the suit for partition has been valued at rupees one lac. The plaintiff claimed 1/4th share in the said property and as the valuation of the share would fall within the jurisdiction of the Munsif hence the plaintiff filed the case before the court of Munsif as according to the plaint, it was within his jurisdiction. An objection being raised by the defendant on this issue has been disposed of by the impugned order whereby the learned trial court has stated that the matter would be considered after filing of the written statement.
Mr. Kumar, learned counsel appearing for the plaintiff-opposite party no.1 has relied upon a Division Bench judgment of this Court reported in AIR 1953 Patna 342 (Bhairab Chandra Rai vs. Sat Narain Sarkar) and with reference to the opinion of the Division Bench expressed in paragraph 3 of the judgment it is submitted that the issue of jurisdiction would be dependent upon the value of the share claimed in the suit and not the value of the whole property.
The Division Bench, it is noted, has referred to earlier judgment(s) of this Court reported in AIR 1921 Patna 78 and AIR 1923 Patna 342. In each of judgments referred above, it has been unequivocally held that in a suit brought for partition by a plaintiff who is in joint possession and there is no dispute as to the title or share, the jurisdiction of a court would be dependent Patna High Court C.R. No.1351 of 2008 (7) dt.14-02-2013 3 upon the value of the whole property sought to be partitioned but in case, where the plaintiff has sought for adjudication of his title and partition after such adjudication, the jurisdiction of the court would be dependable upon the value of the plaintiff's share.
The plaint has been brought on record by the petitioner as Annexure-2 and a perusal whereof manifests that the suit is a suit simplicitor for partition without any issue of title.
In view of the aforementioned position, this Court is of the opinion that since the objection raised by the petitioner goes to the root of the matter and effects the jurisdiction of the trial court itself, it would be appropriate that the learned trial court would adjudicate upon the issue of jurisdiction as a preliminary issue after hearing the contesting parties in accordance with law before proceeding to adjudicate upon the other issues.
With the aforesaid observations and directions this civil revision application is disposed of.
(Jyoti Saran, J) SKPathak/-