TMI Blog1998 (8) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... no right over the land in dispute and if they are found in possession, they may be evicted. 3. The petitioners filed written-statement and claimed that they have a right over the land in dispute. It was further alleged that during consolidation proceedings, the plaintiff could raise an objection in regard to the title and right over the land in dispute and such objection having not raised, the claim of the plaintiff-respondent was barred under Section 49 of U. P. Consolidation of Holdings Act (hereinafter referred to as the Act). It was further pleaded that the Collector had no power to Institute the suit on behalf of the Gaon Sabha. 4. The trial court framed various issues. Issue No. 3 was whether the suit was barred by Section 49 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The question is whether these issues ought to have been decided as preliminary issues by the Courts below. Order XIV, Rule 2 (2). C.P.C. provides that 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 thereof may be disposed of on an issue of law only, it may try that issue first if that Issue relates to : (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision of that issue. 8. Sub-rule (2) leaves discretion upon the Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as in sub-rule (2) the word 'may' has been used which clearly indicates that it is discretion of the Court to decide any issue as preliminary issue. 11. In Dhirendranath Chandra v. Apurba Krishna Chandra and others AIR 1979 Pat 34, the question was whether the suit was barred by the provisions of Section 66(1) of the Code of Civil Procedure and such issue be decided as a preliminary issue, it was held that it was not obligatory on the Court to try the issue as a preliminary Issue as sub-rule (2) of Rule 2 of Order XIV leaves discretion on the Court to try an Issue as preliminary issue. In Usha Sales Ltd. v. Malcolm Gomes and others AIR 1984 Bom 60, the Court held that it is not obligatory on the Court to decide issue relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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