R.N. Pyne, J.

1. This appeal is directed against the judgment and order dated 19th February, 1980 of Mrs. Padma Khastgir, J. allowing the application made by the respondent No.1, Smt. Anita Jindal, inter alia, for revocation of leave under Cl.12 of the Letters Patent and for other reliefs as will appear from the petition of the said application.

2. The appellant, Ritu Sachdev, filed Suit No.576 of 1979 for partition and administration of the estate left by her deceased father, one Baldev Raj Sachdev, Baldev Raj Sachdev, since deceased, (hereinafter referred to as the said deceased) died on 17th August 1975 leaving the respondent No.2 (his wife) and the appellant and the respondent Nos.1 and 3 (his three daughters) as his heiresses and legal representatives and various properties as will appear from the schedule to the plaint. In the suit the plaintiff claimed partition of various properties including immovable properties situated at New Alipore outside the jurisdiction and tenancy rights in respect of shop-room at premises No.14/2, old China Bazar Street where the said deceased used to carry on business under the name and style of printers emporium and of the godown at No.22, Sukeas Lane, Calcutta. The premises No.14/2, old China Bazar Street. and 22, Sukeas Lane, Calcutta are situate within the jurisdiction of this court and on that basis leave under clause 12 was obtained by the appellant.

3. The respondent No.1, Anita Jindal, made the said application for revocation of the leave under clause 12 of the Letters Patent on the ground that after the death of the said deceased the business of Printers Emporium was converted into a partnership whereof the respondents were partners and the appellant, then being a minor, was admitted to the benefit of partnership and thereafter by a deed of dissolution dated 1st April, 1978 the said firm was dissolved and the entire assets of the said firm including the tenancy right in respect of the shop-room in premises No.1412, Old China Bazar Street were transferred to one Satish Kant Jindal, the husband of the respondent No.1. The tenancy in respect of the godown at No.22, Sukeas Lane, Calcutta was surrendered and thereafter it was given to Satish Kant Jindal. The said Satish Kant Jindal became and is the tenant in respect of the said shoproom and the godown. As, according to the respondent No.1, no immovable property belonging to the estate were situate within the jurisdiction of this court she made the said application for revocation of the leave under Cl.12 of the Letters Patent.

4. Mrs. Padma Khastgir, J. by the judgment and order dated February 19, 1980 dismissed the said application. According to her Lordship, inasmuch as no part of the immovable property was situate within the jurisdiction and further the application for amendment of the plaint and addition of the parties made by the appellant was dismissed it could not be said that any part of the cause of action arose within the jurisdiction of this Court.

5. Counsel for the appellant has submitted that for the purpose of an application for revocation of leave on the ground of lack of jurisdiction the allegation in the plaint must be deemed to be admitted. So far as the present case is concerned it is clear from paragraph 2 read with schedule item Nos.3 and 4 that some of the immovable properties are situate within the jurisdiction of this court. Therefore, on the basis of the allegations made in the plaint it is not open to any party to challenge the said allegation or to urge that this court has no jurisdiction. It was further submitted that if the court wanted to decide the question of jurisdiction it should not have been done so merely on the allegation by one of the defendants to the effect that under the deed of dissolution dated 1-4-1978 the tenancy rights in respect of the shoproom at 14/2, Old China Bazar Street was assigned in favour of the husband of the defendant No.1, Satish Kant Jindal or on the allegation of the surrender of the tenancy in respect of 22, Sukeas Lane and its subsequent mutation in the name of Satish Kant Jindal, the husband of the defendant No.1, in view of the fact that the deed of partnership itself was challenged in the plaint. According to counsel, it should have been acsertained whether the properties continue to form part of the joint estate and as such liable to partition. Further, and in any event, the deed of dissolution was voidable because the plaintiff was a minor and the alleged transfer was done without courts permission and was hit by S.8 (2) of the Hindu Minority and Guardianship Act, 1956. It was also the submission of the counsel that the deed of dissolution was not admissible in evidence for want of registration under Section 49 read with Section 17 (1) (b) of the Indian Registration Act in so far as it related to the assignment of tenancy. The assignment of tenancy is also invalid in view of Section 14 (1) (b) of the West Bengal Premises Tenancy Act, 1956. Counsel has, therefore, submitted that all these are questions which should be decided in the suit and not in a summary manner in an application. It has also been submitted that the judgment is erroneous because it proceeds on the basis of fact collateral to the matter in issue and the appeal court is entitled to examine the reasons and if the appeal court finds these reasons are unwarranted it should set aside the order.

6. In support of his above submissions, counsel has referred to the cases, Dominion of India v. Jagadish Prosad Pannalal, (1949) 84 Cal LJ 175 : (AIR 1949 Cal 622 [LQ/CalHC/1948/101] ); United Commercial Bank v. Sanatan Bastushilpa Pratisthan, AIR 1981 Cal 146 [LQ/CalHC/1980/222] ; Himatsinghka Timber Ltd. v. Narendranath, (1946) 50 Cal WN 624 at p.626 and Basanta Kumar Biswas v. Prosonna Kumar Guha, AIR 1932 Cal 47 [LQ/CalHC/1930/223] .

7. Counsel for the respondent has submitted that in the instant case as the two immovable properties namely, the tenancy rights in respect of two premises No.14/2, Old China Bazar Street and No.22, Sukeas Lane, Calcutta do not form part of the estate and all the co-sharers are not interested therein inasmuch as the tenancy rights belong to the husband of the defendant No.1 Satish Kant Jindal. Further in the dispute regarding the tenancy right only the appellant and Satish Kant Jindal are interested. The other co-sharers are not interested in the said dispute. Therefore, inasmuch as no immovable property belonging to the estate is situate within the jurisdiction the court has no jurisdiction to decide this suit and leave u/cl.12 should be revoked. Counsel has relied on the case of Ranjit Kumar Palchowdhury v. Murari Mohan Pal Chowdhury, AIR 1958 Cal 710 [LQ/CalHC/1957/191] and an unreported Bench decision of this Court in the case of Promod Kumar Jalan v. Shyam Lal Jalan. It was further submitted that the appellants application for amendment of the plaint was dismissed the question of validity with regard to the dissolution of partnership and assignment of the tenancy right in respect of the shop room and the godown cannot be decided in this suit.

8. From the judgment and order appealed against it appears that the leave under Clause 12 was revoked on the ground that the tenancy right in respect of the shoproom and the godown belonged to Satish Kant Jindal and not to the estate and that the application for amendment of plaint and addition of party was rejected. According to the learned trial Judge, the only property that remained to be partitioned by and between the parties is the property situated at New Alipore outside the original side jurisdiction of this Court.

9. From the decided cases it appears that the question of jurisdiction must be decided on the allegation in the pleadings and it must be decided before the case beings whether or not there is a jurisdiction. If, on the face of the pleading, the court has jurisdiction, it matters not that later the suit as against the person who carried on business or resided within the jurisdiction is dismissed. Where leave has been granted under Cl.12 of the Letters Patent and application by defendant for revocation may raise questions far too difficult to determine upon affidavit evidence and in such case the question should not be decided on affidavit evidence. In a proper case an application to revoke the leave granted under Cl.12 may be entertained by the court, but the question of difficulty and importance should not be dealt with by an application to revoke the leave under Cl.12 and to take the plaint off the file. The proper course is to dismiss the application to take the plaint off the file and to direct that the cases do proceed on all points in the usual way.See the cases of Dominion of India v. Jagdish Prosad Pannalal, (1949) 84 Cal LJ 175 : (AIR 1949 Cal 622 [LQ/CalHC/1948/101] ); Himatsinghka Timber Ltd. v. Narendra Nath Banerjee, (1946) 50 Cal WN 624; Secretary of State v. Golabari Poliram, AIR 1932 Cal 146 [LQ/CalHC/1931/82] and United Commercial Bank v. Sonaton Bastushilpa Pratisthan Pvt. Ltd., AIR 1981 Cal 146 [LQ/CalHC/1980/222] .

10. Applying the above principle it appears that on the basis of the allegations made in the plaint it cannot be said that this court has no jurisdiction to entertain the suit because part of the immoveable property namely, the tenancy rights are in respect of the shoproom and the godown situated within the jurisdiction. Further, we have by our judgment and order made today allowed the appeal No.154 of 1980 preferred against the judgment and order dismissing the appellants application for amendment of the plaint and addition of parties. In that view of the matter the question will arise m the suit as to whether the tenancy rights in respect of the shoproom and the godown belong to all the co-sharers or not. In view of our judgment at this stage it cannot be said that all the co-sharers are not interested in the tenancy rights of the said shoproom and the godown. In our view, the question as to whether the said tenancy rights belong to the estate or not or in other words, all the co-sharers are interested in the said tenancy rights or not are complicated questions of fact and law which, in our view, should be decided in the suit itself and not on affidavits in the application. For the aforesaid reasons and in view of our judgment in Appeal No.154 of 1980, in our view, it cannot be said at this stage on the basis of the plaint that this Court has no jurisdiction to try the suit.

11. For all the reasons stated above, in our view, this appeal should succeed.

The appeal, therefore, is allowed. The cost of the appeal will abide by the result of the suit.

S.C. Ghose, CJ.

I agree.

Appeal allowed.