Skip to content


Mahabir Prasad Vs. ShamshuddIn Ansari and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 270 of 1968
Judge
Reported inAIR1971All516
ActsCourt-fees Act, 1870 - Sections 7
AppellantMahabir Prasad
RespondentShamshuddIn Ansari and ors.
Appellant AdvocateKesari Bir Pd., Adv.
Respondent AdvocateS.M. Fakhruzzaman, Adv.
DispositionAppeal partly allowed
Excerpt:
.....files a suit for recovery of possession against the landlord and those partner - held, it is a suit for possession of shop from partners - suit has to be valued for the purpose of jurisdiction at the market value of the shop - court fee payable according to section 7(v)(ii). - - the plaintiff further alleged that he had taken the defendant-applicants mahabir prasad and shankar lal as well as the defendant-opposite party no. the plaintiff treating himself to have been dispossessed from this shop filed the suit for recovery of possession against the landlord as well as the other three defendants who were his erstwhile partners in the business. 4. the suit would clearly fall within the scope of clause (v) (ii) which relates to suits for possession of land, buildings or gardens and in..........pillai v. taj fraksha thaikkal estate, (air 1946 mad 322). in this case it was held that a suit for possession by plaintiff alleging that he is entitled to occupancy rights in the land and that the first defendant landholder is not entitled to lease the land to defendant 2 and to put him in possession does not fall under section 7(xi)(e) as the suit is not only against landholder but also against another person who according to plaintiff is in the position of a trespasser. the view taken by some other high courts on this point is different. in secretary of state v. dinshaw navroji, (air 1925 sind 275) it was held that sub-section (xi) refers to suits between the landlord and the tenant. it does not restrict such suits between the landlord and the tenant only. there is, therefore.....
Judgment:
ORDER

J.M. Lal, J.

1. The only point that arises for decision in this revision is whether the suit out of which this revision has arisen falls under Sub-section (xi) (e) of Section 7 of the Court-fees Act as amended in its application to this State or under Sub-section (v) (ii) of the said section. If the suit falls under the first provision, not only ad valorem court-fee would have to be paid according to the amount of one year's rent but its valuation for the purposes of determining The pecuniary jurisdiction of the court would also be the same in view of Section 8 of the Suits Valuation Act. That valuation would admittedly be within the pecuniary jurisdiction of the Munsif in whose court this suit was filed. If on the other hand the suit falls under the latter provision, it will have to be valued for the purposes of jurisdiction at the market value of the property involved in or affected by the relief sought. The market value of the property in respect of which relief for possession has been prayed for has been determined by the trial court at Rs. 3150/- on the basis of the report of the commissioner who was appointed to determine the value. On that valuation the suit may go out from the pecuniary jurisdiction of the Munsif unless he exercised enhanced powers to try the suits exceeding rupees three thousand.

2. The brief facts of the case were that the plaintiff-opposite party No. 1 filed his plaint with the allegation that he was a tenant of a shop situate in the town of Barabanki holding it from the father of defendant-opposite parties Nos. 2 & 3 and that he used to carry on his cloth business in this shop. The rent of this shop, according to the plaintiffs, was Rs. 22.50 p.m. The plaintiff further alleged that he had taken the defendant-applicants Mahabir Prasad and Shankar Lal as well as the defendant-opposite party No. 4 Banshi Dhar as partners with him in his cloth business and in that capacity they began to sit on the shop in question. The partnership was dissolved but after that these persons did not give up their possession. On the other hand they colluded with the landlord and persuaded him to recognise them as his tenants in supersession of the tenancy rights of the plaintiff. The plaintiff treating himself to have been dispossessed from this shop filed the suit for recovery of possession against the landlord as well as the other three defendants who were his erstwhile partners in the business.

3. On these facts it was contended on behalf of the plaintiff that this suit would fall under Clause (xi) (e) which relates to suits between landlord and tenant to recover the occupancy of immovable property from which a tenant has been illegally ejected by the landlord. On behalf of the defendant-applicants it was contended that this suit cannot fall under this category as the suit was not filed only against the landlords. In this connection reliance was placed on behalf of the applicants on a decision of Madras High Court in Kuppuswami Pillai v. Taj Fraksha Thaikkal Estate, (AIR 1946 Mad 322). In this case it was held that a suit for possession by plaintiff alleging that he is entitled to occupancy rights in the land and that the first defendant landholder is not entitled to lease the land to defendant 2 and to put him in possession does not fall under Section 7(xi)(e) as the suit is not only against landholder but also against another person who according to plaintiff is in the position of a trespasser. The view taken by some other High Courts on this point is different. In Secretary of State v. Dinshaw Navroji, (AIR 1925 Sind 275) it was held that Sub-section (xi) refers to suits between the landlord and the tenant. It does not restrict such suits between the landlord and the tenant only. There is, therefore no reason why this sub-section should be limited to suits where the landlord and the tenant alone are parties and should not apply to a suit, where in order to avoid any unnecessary delay in execution proceedings a person inducted by the landlord is joined as second defendant to the suit. The same view was taken by Punjab High Court in Ram Kumar Bhola Nath v. Banwarilal Nand Kishore . In this case a suit was filed by the tenant 'A' against his landlord 'B' with the allegation that one 'S' and 'A' were tenants of the premises. When 'A' was out of town, the landlord 'B' in collusion with 'S' took illegal possession of the premises in question and handed over possession of the same to 'R' and 'G' obtaining a rent note in his favour from them. It was further averred that the three defendants 'B', 'R' and 'G' were in illegal occupation of the premises. On these facts it was held that since 'A' was 'dispossessed by his landlord, his cause of action immediately arose against the landlord. If the landlord after that inducted others on to the property that did not give a new or a separate cause of action to 'A'. Those others must go to vacate the property should 'A' succeed against the landlord as the landlord must go pursuant to the decree against him, for those others had no claim to the property against the plaintiff except the claim of the landlord. The suit was, therefore, essentially and in substance no more than one between a tenant and a landlord. In my opinion so far as the facts of the present case are concerned, the suit would not fall under Clause (xi) (e) whichever of these views is accepted.

In this case the defendant-applicants and the defendant opposite party No. 4 did not enter in possession of the shop in dispute through the landlords who had at no time ejected the plaintiff. On the other hand these persons originally went on the premises when the plaintiff took them as his partners in the business and they continued to remain in possession of the shop even after the partnership was dissolved. In order to take a plausible stand to justify their possession over the shop after the dissolution of the alleged partnership, they had persuaded the landlords, as alleged by the plaintiff, to recognise them as tenants. Thus it is clear that these defendants were not inducted by the landlords. On the other hand they were already in possession of the premises and they sought the help of the landlord as a subterfuge to justify their possession after the alleged dissolution of partnership.

4. The suit would clearly fall within the scope of Clause (v) (II) which relates to suits for possession of land, buildings or gardens and in such suits where the subject-matter is a building or garden, the court-fees is required to be paid according to the market value of the building or garden, as the case may be. The learned counsel for the plaintiff opposite party argued that even if this provision applies to the suit, the plaintiff is not the owner of the building and he has only tenancy rights therein and as such the shop is not to be valued at its ordinary market value but only the tenancy rights of the plaintiff therein should be valued in some just and equitable manner. It is suggested by him that this equitable and just manner would be to put the value of the tenancy rights at the amount of rent payable for one year. It is pointed out that Clause (v-B) provides for suits for possession of land between rival tenants and by tenants against trespassers and though this clause in terms is confined to agricultural land on which rent is payable as recorded in the Collector's register, this would give an indication of the mind of the legislature as to how they thought that the rights of a tenant in such land should be valued. Sub-clause (c) of this clause provides that in a suit by a tenant other than a permanent tenure-holder or a fixed rate tenant or an ex-proprietary or occupancy tenant, the land is to be valued by its annual rent. It is suggested that by anology this principle should be extended to evaluating the rights of a tenant in a building when the tenant brings a suit for possession against trespassers who have ejected him from that building. In this connection reference is made to a decision of this Court in Chief Inspector of Stamps, U. P. v. Sewa Sunder Lal, : AIR1949All560 . That was a suit for injunction brought by a tenant against the defendant who was interfering with the plaintiff's possession over the leased premises consisting of building. The consequential relief of injunction was to be valued under Clause (iv-B) which provides that this valuation shall not be less than one-fifth of the market value of the property involved in or affected by the relief sought or rupees two hundred whichever is greater. For the purposes of court-fees it was held that the market value of the property in such cases in which the plaintiff has only tenancy right can be fixed at one year's rent by applying the analogy of Clause (v-B) (c). The question as to how the property should be valuedfor the purposes of Suits Valuation Act was not decided in this case.

Section 4 of the Suits Valuation Act specifically provides that the suits falling under Clause (v) of Section 7 of the Court-fees Act shall be valued for the purposes of jurisdiction at the market value of the property involved in or affected by the relief sought. The relief sought in this case against the defendant-applicants is recovery of possession over the shop after their dispossession. The property affected by this relief is the shop itself. As such for the purposes of suit valuation it is the market value of the shop which has to be taken into consideration and not the market value of the limited rights which the plaintiff may have in this property. A similar question directly came before Nagpur High Court in Gajanan Nanaji v. Rajeshwar Krishnaji, (AIR 1950 Nag 237). It was held that a suit for possession of a shop in a market building by the permanent lessee thereof is clearly for possession of a portion of a house. Therefore the subject-matter is, so far as the question of possession is concerned, the house, and not the possession of the leasehold rights which are intangible and are not capable of physical possession. The valuation of the suit, therefore, depends on the market value of the house and not on the value of the leasehold rights in it. With respects, I agree with this view. Under the circumstances the suit should have been valued for the purposes of jurisdiction at Rs. 3150/- as determined by the trial court. There was some controversy between the parties whether the learned Munsif in whose court this suit was filed had pecuniary jurisdiction upto rupees two thousand only or enhanced jurisdiction upto rupees four thousand. There is no material on record to determine this fact.

5. Under the circumstances this revision is partly allowed. It is directed that the suit shall be valued at Rupees 3150/- for the purposes of jurisdiction and if the same is beyond the pecuniary jurisdiction of the learned Munsif. he shall return the plaint for presentation to proper court. If it is within his jurisdiction, he shall proceed further in the matter. In the circumstances of the case the parties shall bear their own costs in this Court. The stay order dated 9-10-1968 is discharged.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //