Mixed questions of law and fact on maintainability cannot be decided as preliminary issues.

Respondent No. 1 filed a suit for permanent prohibitory injunction concerning land formerly recorded in his deceased father’s name.

The petitioners, defendants in the suit, objected that Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 barred the civil suit because the plaintiff was not recorded as a tenure-holder and had not obtained a declaration of title from a revenue court.

The trial court framed and decided maintainability as a preliminary issue, holding that Section 331 did not bar a suit for injunction; the revisional court affirmed that decision.

The defendants challenged those orders in a writ petition.

The parties disputed whether respondent No. 1 was the deceased tenure-holder’s son, and competing mutation applications were pending before the Tehsildar.

1. Whether the suit for injunction was barred by Section 331 because the plaintiff was not recorded as tenure-holder and had not obtained a declaration of title from a revenue court

2. Whether the plaintiff’s disputed relationship to the original tenure-holder, and the resulting question of title, could be determined as a preliminary issue

Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 was invoked on the basis that the dispute fell within the jurisdiction of the revenue court.

Under Order XIV Rule 2 of the Code of Civil Procedure, an issue of law may be tried first where the suit, or a part of it, can be disposed of on that issue alone; the provision does not authorize preliminary determination of mixed questions of law and fact.

In Major S.S. Khanna v. Brig. F.J. Dillon, AIR 1964 SC 497, the Supreme Court held that issues depending on disputed facts should not be decided as preliminary issues by assuming one party’s allegations to be true.

The asserted bar to the civil suit depended on disputed facts, including whether respondent No. 1 was the son of the deceased tenure-holder and the basis of his claim to the land.

The parties’ competing accounts and pending mutation proceedings showed that the question could not be resolved merely as a preliminary issue of law.

Applying Major S.S. Khanna, the Court held that the trial court was not at fault in declining to determine maintainability at that stage, and that the revisional court had rightly affirmed its order.

It directed the trial court to consider the suit’s maintainability while deciding the other issues, uninfluenced by the observations in the orders under challenge.