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Civil Revision No. 7 of 1949, decided on 20th June, 1949, from the order of Senior Subordinate Judge Montgomery, dated 8th June, 1948.

Civil Procedure Code (V of 1908), O. XIV, R. 2‑Preliminary objec tion may relate to entire suit and may indirectly touch the merits of case but must not involve the direct decision of a question which is an integral part of the merits of case‑Finding of lower Court on preliminary issue not based on such preliminary objection set aside.

A preliminary objection almost invariably relates to the entire suit. Secondly, while a preliminary objection may touch the merits of the case in a collateral or indirect manner, it must not involve the direct decision of a question which is an integral part of the merits of the case. Now, in the present case, there can be no doubt that the right of the plaintiff to claim possession of Field No. 2174, despite the final failure of his attempts to eject the defendants as tenants of this field under the Revenue Courts decree, is clearly a question relating to the merits of the case.

The proper course, in my opinion, is to set aside the finding recorded by the learned Senior Subordinate judge in regard to this field and to make a direction that the issue in question should be decided along with all other issues arising out of the case on the merits, at the close of the trial.

39 Ind. Cas. 954 and I L R 17 Lah. 38 ref. to.

Muhammad Amin Khan for Petitioners.

Ghulam Mohy‑ud‑Din for Respondents.

‑This petition for revision of an interim order, dated the 8th June 1948, made by the Senior Subordinate Judge of Montgomery in a suit brought by Tahir Shah, Taqi Shah and Mst. Jalal Bibi against Kanda and others, has been brought by the plaintiffs. Their suit was for possession of certain land situated in village Kaure Shah Zerin, including field No. 2174. The allegation for the plaintiffs were that they had obtained a decree for ejectment of the defendants from the suit land on the 19th April 1938 from the Court of the Assistant Collector 1st Grade, Montgomery, the condition of the decree being that the decree‑holder should pay Rs. 2,003 as compensation to the defendants. On appeal, the amount of the compensation was increased by the Collector to Rs. 2,638‑5‑0. The matter was taken up before the Commissioner and the Financial Commissioner, but the Collectors order was not altered, and the plaintiffs allege that they duly paid up the amount of compensation that was awarded against them and then took out execution of that decree and obtained possession of the entire property except field No. 2174, regarding which their last execution application was held to be barred by time. The last order in the execution of the Assistant Collectors decree is dated the 21st September 1945. On the 3rd May 1947, the plaintiffs filed the suit, out of which this revision arises, for possession of the same property, on the allegation that the defendants had re‑entered upon the land after their ejectment through the Revenue Court. With reference to field No. 2174 they alleged that the defendants were trespassers. The learned Senior Subordinate Judge framed three preliminary issue m the case after issue notice to the defendants, which are as follows :‑

(1) Are some persons other than the defendants in possession of the property in suit ; if so, who, and what is its effect

(2) Is the suit liable to be stayed by reason of the defendants having instituted an action for establishing their alleged occupancy rights with respect to the property in suit in the Revenue Court

(3) Whether the suit with respect to Khasra No. 2174 is maintain able

The contention on which the last issue was based, was raised by the plaintiffs and was based on the Assistant Collector''s order of the 21st September 1945, namely that with respect to field No. 2174 the execution application was barred by time.

After recording evidence, the learned Senior Subordinate Judge came to the conclusion that there was do reliable proof to the effect that any persons besides the defendants were in possession of the suit‑land, and secondly, the pendency in the Revenue Assistant's Court at Montgomery of an alleged suit brought by the defendants against the plaintiffs to assert occupancy rights in the suit‑land was no bar to the present suit. As regards field No. 2174, the learned senior Subordinate judge, observing that the defendants contended that with respect to this field, the plaintiffs having allowed their decree for ejectment to become barred could not maintain a suit for possession. discussed certain authorities and after lengthy examination of the matter, came to the conclusion that " it cannot be said that the plaintiffs' claim to dispossess the defendants is based otherwise than on the previous decree or that any cause of action accrued to them subsequent to the date of the ejectment decree justifying their claim for dispossession of the defendants from field No. 2174 ".

The plaintiffs in their revision petition seek to have the last mentioned of these decisions set aside, and the argument is that the ejectment ordered in the Revenue suit was ejectment of the defendants in the capacity of tenants. It may be that such ejectment is now barred by time, but the present suit is based on title, not on the landlord tenant relationship, and it is, therefore, quite distinct from and unaffected by the decision in respect of the decree in the former case. In support of this argument, a Division Bench decision of the Madras High Court, published as Raman Menan v. Mammals (39 I. C. 1954), was cited. A Division Bench decision of the Lahore High Court published as Mst. Harnam Kaur v. Narain Singh (I L R 17 Lahore 38) was cited in support of the proposition that after a decree for ejectment of a tenant has been passed, if he does not vacate forthwith, his further possession is in the capacity of a trespasser, and it was argued that even if execution of the decree obtained for his ejectment as a tenant be time barred, there was no reason why that should bar a suit brought by the plaintiff for ejectment of the defendant from the property as a mere trespasser.

On these grounds learned counsel for the petitioner invites me to hold that the finding that the suit is not maintainable in respect of field No. 2174 is incorrect. In my opinion, the question whether the plaintiff could in his suit claim possession of field No. 2174 was not in the nature' of a preliminary objection at all. A preliminary objection almost in‑1 variably relates to the entire suit. Secondly, while a 1:,relammarv objec tion may touch the merits of the case in a collateral or indirect manner, it must not involve the direct decision of a question which is an integral part of the merits of the case. Now, in the present case, there can be no doubt that the right of the plaintiff to claim possession of field No. 2174,1 despite the final failure of his attempt to eject tile defendants as tenants of this field, under the Revenue Court's decree, is clearly a question relating to the merits of the case. This question was not of a nature which leads to the whole suit being either dismissed or decreed. It did not tough the merits of the case collaterally or indirectly, but in fact is a part of those merits. In other words, it is a question which should properly have been left for decision along with all other questions arising out of the case on the merits at the conclusion of the trial. The other two questions raised before the learned Senior Subordinate Judge were undoubtedly questions of a preliminary nature, but it is perfectly clear that in deciding this particular question which belongs to the substantive part of the case the learned Senior Subordinate Judge has fallen into the error of deciding the case piecemeal. So for issues on the merits have not been framed in the case, and it may‑ very well be that some other issue may be framed which will have a direct or indirect connec tion with the issue relating to field No. 2174 ; it is most desirable, if such be the case, that the decision of both questions should be post poned until the case has been fully thrashed out at the trial. For the same reason, it will be entirely inappropriate for me sitting in revision to reverse or otherwise alter the conclusion arrived at by the learned Senior Subordinate judge in regard to field No. 2174. The proper course, in my opinion, is to set aside the finding recorded by the learned Senior Subordinate judge in regard to this field and to make a direction that the issue in question should be decided along with all other issues arising out of the case on the merits, at the close of the trial and allowing this petition ; I make an order accordingly. The costs of the petition will be costs in the cause.

K. M. A. Petition allowed.

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