1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1759 OF 2008 Keshavrao s/o Govindrao Kulkarni ...Petitioner Versus Sow. Shantidevi w/o Ramprasad Porwal and Ors ...Respondents ..... Mr. S.P. Sonpawale, advocate for the petitioner Mrs. Geeta Deshpande, advocate for respondent Nos. 1-a to 1-c. ..... CORAM: S. S. SHINDE, J. DATED: 16TH SEPTEMBER, 2009 PER COURT:- 1 This petition is filed challenging the order dated 25.1.2008 passed by the learned Civil Judge, Junior Division, Partur, below Exh.1 in R.C.S. No. 240 of 1997. 2 Learned counsel appearing for the petitioner submitted that during pendency of the suit original plaintiff died and legal representatives of the plaintiff are not entitled to pursue the pending suit, since the sole claim in the suit is about easementary right of the original plaintiff. According to the learned counsel, his right of easementary is a private right and legal representatives of the 2 deceased plaintiff cannot claim the said right. Therefore, the petitioner herein insisted the trial court to adjudicate issue No.5-A which was specifically framed with regard to the right of the L.Rs. of original plaintiff to prosecute the suit. However, the trial court rejected the prayers of the petitioner and held that the preliminary issue can be heard alongwith the other issues at the time of final hearing of the matter. According to the learned counsel, when right to sue does not survive after the death of the original plaintiff, since relief claimed is easementary right, there is no question of adjudication of other issues. In case the preliminary issue is decided, nothing remains to be decided in rest of the suit. Learned counsel further submitted that easementary right has to be proved continuous un interrupted use of land of adjacent owner, in this case the 20 years use is sign quo non to be proved by the plaintiff as such, she has filed suit in the year 1997. Hence, easementary right cannot be claimed, hence, suit deserves to be dismissed. 3 Learned counsel appearing for the respondent Nos. 1-a to 1-c vehemently opposed the prayers in the petition and submitted that the impugned order does not suffer any infirmity. The court has held that since the suit is for perpetual injunction, the preliminary issue i.e. 5-A can be considered at the time of final hearing of the suit. Learned counsel invited my attention to the provisions of Order XIV Rule 2 and 3 submitted that the court can hear the matter on preliminary issue, however, the pronouncement of the judgment should be on all issues. It is further submitted that whether issues, both on law and on fact arise in the same suit and the court is of the opinion that the case or any part thereof may be disposed of on issue of law only, which may try the issue first, if that issue relates jurisdiction of the court or bar to the suit created by any law for the time being in force and for that purpose the court can postpone the settlement of the other issues entitled that the issue has been determined and may deal with the suit in accordance with law on that issue. On the basis of provisions of Order XIV Rule 2 of C.P.C. learned counsel submitted that the issue involved in the present case is on both law and fact and not only of law, therefore, the preliminary issue cannot be tried separately and trial court has rightly held that the preliminary issue can be heard and decided at the time of final hearing of the suit. 4 After hearing counsel appearing for the petitioner and the counsel for the respondents concerned and after perusal of the impugned order and the provisions of Order XIV Rule 2, I am of the considered view that the point which is raised by the petitioner is not merely point of law but issue is of mixed question of law and facts. Therefore, issue No.5-A cannot be decided before other issues are 4 taken up for consideration and adjudication. It is an admitted position that the suit is for perpetual injunction. From the prayers of the suit, it cannot be gathered that the plaintiff is agitating the point of easementary right. The trial court has placed reliance on the reported judgment of the Supreme Court in the case of Smt. Ambika Vs. S.H. Radhakrishna, reported in AIR 1992 SC 431, wherein the Hon’ble Supreme Court has held that, “where the parties substituted as plaintiffs on death of original plaintiff were claiming under the original plaintiff and had not amended the basis of the suit or the reliefs asked for, it could not be said that their cause of action was different from that of the original plaintiff and they could not continue the suit merely because they were claiming to be legal representatives under a settlement and a will respectively and where not natural heirs.” 5 On perusal the provisions of Order XIV Rule 2 would clearly demonstrate that the court has to pronounce the judgment on all issues though the preliminary issue is tried first, therefore, the trail court keeping in mind the said provisions has rightly held that the preliminary issue to be tried alongwith other issues. In my considered view, there is no reason to interfere in the impugned order. The trial court has only declined to entertain the issue No.5-A as preliminary issue to be tried before final hearing of the suit and it is left open for the petitioner to agitate the same issue at the time of final hearing. 5 6 For the aforesaid reasons, I find that writ petition is devoid of any merits. No interference is called for in the impugned. Writ petition is therefore, is dismissed. Interim relief, if any, stands vacated. *****