ORDER
1. The plaintiffs in this case are sons of Chuni Lal, defendant No. 5. They have filed a suit for declaration and injunction in which they seek a declaration that two bungalows in Civil Lines. Delhi bearing Nos. 23 and 25 at Raipur Road belong to and are the property of the joint Hindu Family comprising of the plaintiffs and defendants No.5 and that defendants Nos. 1 to 4 be restrained by means of a permanent injunction from interfering with the peaceful enjoyment of these two properties by the plaintiffs and defendant No. 5. The circumstances which have led to the filing of the suit, briefly stated are that one Seth Beni Pershad, the grand-father of plaintiffs is claimed to have constituted a joint Hindu Family with his sons and grandsons which family was the owner of various properties as well as running business. Seth Beni Pershad died in December, 1948 and there after the joint family was constituted by Chuni Lal, defendant No. 5 and his three sons, the plaintiffs as well as Mahaveer Prasad, defendant No. 3, who was a minor in 1948. In 1953, it is alleged, defendants Nos. 3 and 5 separated and put an end to their joint Hindu Family and became co-owners of the erstwhile joint Hindu Family property and the family business which they had inherited from Seth Beni Pershad. Thus the family property and business came to be owned by Mahaveer Prasad defendant No. 3 as one joint owner and the joint Hindu Family comprised of the plaintiffs and defendant No. 5 as the other joint owner Subsequently there was a partition between these two branches and the two bungalows in suit fell to the share of Chuni Lal, defendant No. 5 and the plaintiffs and it is alleged, is still in the owner ship of this joint Hindu Family.
2. Defendant No. 2 herein, Seth Beni Pershad Jaipuria Charitable Trust has as its trusted amongst others. Chuni Lal defendant No. 5. Mahaveer Prasad, defendant No. 3 is claimed to be another trustee and the case of defendants 1 to 4 is that the third trusted is Smt. Rudumani Devi. The plaintiffs allege that while they were minors, their father Chuni Lal expressed the intention of giving away the properties in suit to this Charitable Trust for the purposes of running a school etc, but in fact the properties were never transferred. However, defendants 1 to 4 have started asserting title to the properties in suit and have threatened to interfere with the peaceful enjoyment of these properties by the real owners and so it is necessary to get a declaration and a permanent injunction as claimed by them.
3. Defendant No. 5 has naturally supported the plaintiff's suit. Defendants 2,3 and 4 have contested the suit. They have pleaded inter alia, that the suit for declaration and injunction is not maintainable on the allegations made in the plaint, that the plaintiffs are not in possession of the property in suit that the suit as filed is barred under the proviso to Section 34 of the Specific Relief Act, that the suit is not maintainable against defendant No. 2 which is an unregistered body, that all the trustees of the trust, defendant No.2, have not been imp leaded as defendants and inasmuch as Smt. Rukumani Devi is also a trusted, she is a necessary party to the suit, that there was a dedication of the properties in suit in favor of the Trust, and that the properties were not owned by the Joint Hindu Family headed by Seth Beni Pershad and at no time did the property in suit fall to the share of the plaintiffs and Chuni Lal in any alleged partition and so there was no question of the coparcenery set up by the plaintiffs owning any property. Defendant No. 1 has set up the plea that the property in suit belongs to the Trust since a long time and is being utilised by the said Trust for the purpose of running a girls school. He has denied that the property belonged to the plaintiffs and Chuni Lal and has asserted that the possession is that of the Trust, Defendant No. 1 is the brother-in-law of defendants 3 and 4 . defendant No. 6 is the wife of defendant No. 5 and so has naturally supported the plaintiffs case. In the replication filed on behalf of the plaintiffs the allegations in the plaint have been reiterated.
4. Before issues could be settled on the pleadings of the parties the plaintiffs have moved I.A. 1122 of 1971 under Order 14, Rules 2, Civil P.C. by which it is urged that a preliminary issue on a question of law be settled which will dispose of the suit or at least a substantial portion of the suit between the parties. The suggested issue is in the following terms :-
'Could the gift immovable property, the subject-matter of the suit be effected by Seth Chunni Lal Jaipuria (defendant No. 5), except by means of a duly stamped and duly executed registered document in accordance with law and attested by two witnesses : If not with what effect?'
5. This application has been resisted by defendants 2, 3 and 4 who have urged that it is not possible to try the suit piece-meal and all the issues arising in the suit should be settled and tried at the same time.
6. Order 14, Rule 2, Civil P.C. 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 thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined'.
7. Normally, there is no right in any party to dictate to the court the manner in which it should try the various in which it should try the various raised in a litigation as the court has absolute discretion to proceed to decide a matter in such a way as may be best conducive to the ascertaining of truth. There are, however, two aspects that the court must keep in mind. The first is that a suit should not be decided piecemeal at the trial stage for it would lead to protracted litigation if the order deciding the suit on only one or two points is upset by an appellate court remanding the case for trial on the remaining issues as well. If this is not kept in mind several appeals may arise in the same matter. The second aspect which must be borne in mind is that where the issues of law go to the root of the controversy between the parties and the settlement of that question of law can decide the entire dispute or at least a substantial part thereof without having recourse to evidence, the court is bound to try those issues of law first if it comes to the opinion that without recording evidence the entire controversy or a substantial part of it can be settled on a pure question of law. Mr. H.R. Sawhney, learned counsel for the plaintiffs, has urged that admittedly there is no registered transfer deed of the property in suit whereby the same has been transferred to defendant No.2 and a such it is a pure question of law that no title in the property can be claimed by defendant No.2 or its trustees and the plaintiffs would be entitled to claim a declaration of their title t the property in suit without having to lead any evidence. He referred to the provisions of Section 123 of the Transfer of Property Act 1882 and contended that a gift of immovable property can be effected only by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Inasmuch was this has admittedly not been done vis-s-vis the properties in suit, no claim of ownership can be put forward by defendants Nos. 1 to 4 and a substantial portion of the dispute will thus be settled. It is contended by the learned counsel that the case thus falls clearly within the ambit of Rule 2 of Order 14 of the Civil P.C. and the court must settle a preliminary issue and decide the same. In this connection he has relied on several precedents.
8. The first case to which my attention has been invited on behalf of the plaintiffs is a decision of a Bench of the Punjab High Court in S. Partap Singh Kairon v. S. Gurmej Singh . In that case an election petition was filed by Gurmej Singh against the election of S. Partap Singh Kairon as a member of the Punjab Legislative. Assembly. The Election Tribunal framed a number of issues on the pleadings of the parties. Among the issues framed were one with regard to the competency of Sardar Gurmej Singh to raise an objection in his election petition about the rejection of the nomination papers filed by on Santa Singh and the second was as to whether a lambarder was a person in Government service within the meaning of Section 123(7) of the Representation of the People Act. 1951. It was urged on behalf of S. Partap Singh Kairon that these two issues should be tried by the Election Tribunal as preliminary issues under Order 14, Rule 2, Civil P.C. As the Election Tribunal declined to do so a petition under Article 227 of the Constitution of India was filed against the order of the Election Tribunal declining to treat the said two issues as preliminary issues. Bhandari, D.J. who spoke for the court held that when the court is of the opinion that an objection raises a serious question of law which it decided in favor of the party objecting would dispense with any further trial or at any rate with the trial of some substantial issues in the action, it has no option but to decide that issue first. It has discretion to determine whether the case or any part thereof can or cannot be disposed of on issues of law only. It may hold that the objection in point of law is not clear and explicit, or that the allegation wears a doubtful aspect or that it raises a mixed question of law and fact, or that the matter is one which by reason of the obscurity either of the facts or of law ought to be decided at the conclusion of the trial or that the facts are in dispute or that a vital and undetermined question of fact is presented. In such a case the Court may decline to determine the points of law as points of law. However if it finds that the case or part thereof can be disposed of on issues of law only it must decide those issues first.
9. In Mangtulal Bagaria v. Daya Shankar Gobardhan Das Bhata : AIR1936Pat572 , a Bench of the Patna High Court observed that the question of maintainability of a suit is to be dealt with on the footing of the case as presented by the plaintiff and on the assumption that his allegations are correct. If afterwards they are found to be incorrect the suit is liable to be dismissed not on the ground that it is not maintainable but on merits. Mr. Sawhney has urged that on the basis of this rule the plaintiff's allegations in the plaint have to be assumed to be correct in deciding the proposed issue and the pleas of the defendants have not to be taken into account at this stage. In this case a certain sale was challenged by the plaintiff and a declaration was sought that defendants acquired no title to the property by purchase in that sale or if the sale be held to be valid for declaration that the purchaser bought the property as benamidar and had no title to it. The trial court decreed the suit primarily on the ground that the State to which the property originally belonged was not property represented before it and so the sale was not binding on the State and so void against it. On appeal the District Judge reversed the finding and dismissed the suit as not maintainable under Section 42 of the Specific Relief Act and held that the plaintiff should have sued for possession along with a suit for declaration. This decision was upset by the High Court which observed that the maintainability of the suit is to be decided on the basis of the case pleaded by the plaintiff and not by what the defendant urged in opposition. The decision, thereforee is of no help in deciding the question as to whether Order 14, Rule 2, Civil P.C. is attracted in the present case.
10. The last case on which reliance was placed is a Bench decision of the Punjab and Haryana High Court in Inder Singh v. Nihal Kaur . This was also a case where a question arose about the frame of the suit and it was held that a suit for mere declaration that a certain document is void is maintainable and there was no need to specifically ask for the document to be delivered up and cancelled. The plaintiff had specifically pleaded in that suit that the gift had not been acted upon and no possession had been given in consequence thereof. The question of possession was put in issue and evidence was adduced thereon. It was held on evidence by the Trial Court that it was highly doubtful whether the plaintiff was in possession of the property on the date he filed that suit or not but went to hold that the suit did not fall within the ambit of Section 42 of the Specific Relief Act, 1877 and the plaintiff's remedy was to file a suit under Section 39 of that Act. On appeal the High Court held that Section 123 of the Transfer of Property Act did not apply to the transaction in suit and that Section 39 of the Specific Relief Act was not attracted inasmuch as the planning had claimed a declaration for adjudging the disputed documents to be void and in such a case it was not necessary for the plaintiff to specifically ask for the document to be delivered up and cancelled, for if the court finds that the claim made by the plaintiff is correct it is in the discretion of the court to direct the document to be delivered up and to cancel it. Mr. Sawhney has urged that in this state of law the plaintiffs can get a declaration of their title and no further relief need be asked for if the transfer is not in accordance with Section 123 of the Transfer of Property Act these would be no transfer in existence in law and the title set up by defendants Nos. 1 to 4 to the properties in suit would be of no avail to them.
11. If the controversies raised in the present litigation were as simple as made out by Mr. Sawhney I would have no objection to grant his prayer. I, however find that the suit filed by the plaintiffs cannot be disposed of by deciding only the preliminary issue claimed by the plaintiffs. Defendants 1 to 4 claim to be in possession of the properties . in that view of the matter the proviso to section 34 comes into play, for if after evidence is recorded it is found that the plaintiffs either themselves or through their father defendant No. 5 are not in possession of the property the court is precluded from making any declaration of the legal character or right claimed by the plaintiffs in this property. Further defendant No. 2 is not a registered body or a juristic person. The properties of the Trust vest in the trustees. Smt. Rudumani Devi, one of the trustees of defendant No. 2 has not been imp leaded as a defendant. She would be a necessary party for deciding the question as to whether the properties in suit vest in the trusted of defendant No.2 and are held by them or whether the ownership of the properties vests in the plaintiffs and defendant No. 5. If a necessary party is not before the Court the provisions of Order 1. Rule 9, Civil P.C. would come into play. This is also a matter which cannot be decided without evidence. Defendants 2, 3 and 4 have also denied the existence or a joint Hindu family or a coparcenary and have even disputed that the properties in suit ever came to the share of Chuni Lal and his sons. This matter would also require evidence. May be the pleas of the defendants 2 to 4 are untenable but then the same have to be adjudicated upon. So, even if it assumed that the title claimed by the Trust is not in existence on account of Section 123 of the Transfer of Property Act, the plaintiffs' title cannot be declared for they will have to establish affirmatively that the property in suit is joint Hindu family property belonging to the plaintiffs and defendant No. 5. Assuming that defendants 1 to 4 are mere trespassers in the property or are threatening to trespass in the property the only relief available to the plaintiffs would be an injunction restraining defendants 1 to 4 from interfering with the possession of the plaintiffs and defendant No. 5, provided they are is possession of the same. I am thereforee of the view to quote, from the speech of Bhandari. C.J. in the case of S. Partap Singh Kairon, 'that the allegations (of possession etc.) wears a doubtful aspect or that it raises a mixed question of law and fact, or that the matter is one which by reason of the obscurity either of the facts or of law ought to be decided at the conclusion of the trial, or that the facts are in dispute or that a vital and undetermined question of fact is presented.'
12. The application is, thereforee, dismissed. No costs. The case to come up for settlement of issues on 18.8.1971.
13. Application dismissed.