IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.1961 of 2006 Safi Akhtar Versus Musafir Rai & Anr ---------------------------------- 4 18-10-2011 Heard the learned counsel appearing on behalf of the petitioner and the learned counsel appearing on behalf of the opposite parties. This revision application has been filed against the order dated 23-9-2006 passed by Civil Judge I (S.D.) in T.S.No. 578 of 2004 by which the petition of the petitioner challenging the maintainability of the suit, has been rejected. The suit has been filed for specific performance of contract dated 15-10-2003. The plaintiffs have averred in the plaint that the defendant had executed the said agreement for sale(Mahada) in favour of the plaintiffs and has also put them in possession of the land-subject matter of the agreement for sale. The plaintiffs have sought the relief for declaration of their possession and for recovery of possession in case they are found dispossessed during the pendency of the suit. During the pendency of the suit the defendant filed the petition praying for a decision on maintainability as a preliminary issue. A rejoinder had been filed on behalf of the plaintiffs resisting the prayer of the defendant-petitioner. It has been also mentioned in the rejoinder that earlier to this petition a similar petition filed by the defendant-petitioner had been rejected by order dated 3-6-2006. After hearing the parties the learned court below has come to the finding that the trial has commenced and an issue has 2 also been framed with regard to the validity of Mahadanam dated 15-10-2003 and further it also took notice that Issue no.8 had been framed with regard to the entitlement of the plaintiffs to get a decree for specific performance of contract on the basis of the aforesaid Mahadanama. The learned court below thereafter has held that the aforesaid Issue can be decided at the stage of disposal of the suit. The learned counsel appearing on behalf of the petitioner has vehemently submitted that the learned court below has committed error of jurisdiction in not deciding the issue of maintainability of the suit and deferring the issue of validity of Mahadanama to be decided at the time of hearing. It has been submitted by the learned counsel that in view of the amended provisions of the Registration Act and Transfer of Property Act an agreement for sale on the basis of which the possession has also been transferred, mandatorily requires registration and in absence of the registration such agreement cannot be legally enforceable. The learned counsel appearing on behalf of the opposite parties has, however, urged that the learned court below has committed no illegality in passing the impugned order as ,there is no provision which bars the maintainability of the suit on the basis of unregistered agreement for sale. After hearing the rival submissions of the parties it is clear that the Mahadanama in question on the basis of which the suit has been filed is not a registered document. However, the applicability of the amended provisions of the Registration Act 3 and Transfer of Property Act as well as other concerned statutes is to be decided only after hearing the parties and looking into their evidence. The provision of Order 14 Rule 1 C.P.C. is very clear that all issues are to be decided by the court while disposing of a suit and an exception has been carved out in Rule 2 of the said Order 14 C.P.C. which includes the consideration of an issue as preliminary issue when there is a bar with regard to the maintainability of the suit. From the impugned order as well as from the revision petition it does not appear that any specific provision of law barring the suit for specific performance of contract on the basis of unregistered document(Mahada) has been mentioned. No such provision has been brought to the notice of this Court at the time of submission also. In absence of such specific bar to the maintainability of the suit, the learned court below does not appear to have committed any illegality in proceeding to hear the suit and decide all the issues which include the issue regarding the validity and legality of the Mahadanama in question as well as entitlement of the plaintiffs to get a decree for specific performance of contract on the basis of the said Mahadanama. For the foregoing reasons, there is no jurisdictional error or illegality in the impugned order. This revision application is, accordingly, dismissed. roy ( V. Nath, J.)