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Durga Das and anr. Vs. Jai NaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1919)ILR61All513
AppellantDurga Das and anr.
RespondentJai NaraIn and ors.
Excerpt:
.....not come under clause (a). that clause refers to what are known as suits to recover possession of immovable property, when the title to that property is alleged by one side to be in him and by the other side to be in him. clause (d) clearly refers to other suits of a like nature' where the title to, or some interest in, the property is in dispute and the court has to determine the matter. we are clearly of opinion that a suit for dissolution of partnership with the usual ancillary relief is not a suit for the 'determination of any other right to or interest in immovable property' within the meaning of clause(d). we allow the application, set aside the orders of both the courts below and send back the case to the court of first instance through the lower appellate court with directions..........that is to say, that it is partnership property. it is not sought to recover possession of the factory. clause (d) clearly refers to other suits of a like nature' where the title to, or some interest in, the property is in dispute and the court has to determine the matter. again, in the present case there is no dispute at all as to whom the property belongs to. nor is there any dispute as to any interest in this property. the only event that may happen is that possibly in the course of the suit the factory may be ordered to be sold with a view to the distribution of the assets of the partnership. we are clearly of opinion that a suit for dissolution of partnership with the usual ancillary relief is not a suit for the 'determination of any other right to or interest in immovable.....
Judgment:

Henry Richards, Kt., C.J. and Pramada Charan Banerji, J.

1. This application arises out of a suit for dissolution of partnership. It is admitted that the parties reside within the jurisdiction of the court at Aligarh. It is admitted that the cause of action arose within the jurisdiction of the court at Aligarh. It appears, however, that the factory which belongs to the parties is situate outside the jurisdiction. The defendants pleaded that the court at Aligarh had no jurisdiction to hear the case and that the suit should have been brought where the factory was situate. This contention found favour with both the courts below. The plaintiffs have challenged the order of the court below by this application in revision. We think that the decisions of the courts below were incorrect. It is admitted that unless the case can be brought within the provisions of Section 16 of the Code, the proper court in which to institute the suit was the court at Aligarh. Section 16 provides that 'Subject to the pecuniary or other limitations prescribed by any law, suits:

(a) for the recovery of immovable property with or without rent or profits.

(b) for the partition of immovable property.

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,

(d) for the determination of any other right to or interest in immovable property,... shall be instituted in the court within the local limits of whose jurisdiction the property is situate.

2. It is contended that the case is within either Clause (a) or Clause (d). We are clearly of opinion it does not come under Clause (a). That clause refers to what are known as suits to recover possession of immovable property, when the title to that property is alleged by one side to be in him and by the other side to be in him. In the present case both sides admit that the property belongs to them both, that is to say, that it is partnership property. It is not sought to recover possession of the factory. Clause (d) clearly refers to other suits of a like nature' where the title to, or some interest in, the property is in dispute and the court has to determine the matter. Again, in the present case there is no dispute at all as to whom the property belongs to. Nor is there any dispute as to any interest in this property. The only event that may happen is that possibly in the course of the suit the factory may be ordered to be sold with a view to the distribution of the assets of the partnership. We are clearly of opinion that a suit for dissolution of partnership with the usual ancillary relief is not a suit for the 'determination of any other right to or interest in immovable property' within the meaning of clause(d). We allow the application, set aside the orders of both the courts below and send back the case to the court of first instance through the lower appellate court with directions to the plaint upon its original number in the file and to proceed to hear and determine the suit as speedily as possible. The record may be returned by this Court at an early date. The respondent will have to pay the costs incurred in the court of first instance by reason of the order of that court, the appeal to the lower appellate court and the application in revision here.


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