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Mst. Dura Deo and ors. Vs. Smt. Pirobati Dei and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 192 of 1975
Judge
Reported inAIR1977Ori85; 42(1976)CLT1247
ActsSuits Valuation Act, 1887 - Sections 8
AppellantMst. Dura Deo and ors.
RespondentSmt. Pirobati Dei and ors.
Appellant AdvocateS. Rath, Adv.
Respondent AdvocateR.K. Mohapatra, Adv.
DispositionRevision dismissed
Cases ReferredHajani Kanta Bag v. Raja Bala Dasi
Excerpt:
.....co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - law is well settled that where there is dispute over the plaintiff's share and the plaintiff seeks adjudication of histitle and for partition after such adjudication, it is the value of the plaintiff's share which will determine the jurisdiction of the court and not the value of the entire property. it was clearly laid down that in the latter case it is the value of the plaintiffs share which would determine the jurisdiction of the court and not the value of the entire property......is no dispute regarding the title of the plaintiff and the only question before the court is as regards partition, the value of the whole property sought to be partitioned must be the value for the purpose of jurisdiction. in the case of hajani kanta bag v. raja bala dasi, air 1925 cal 320 it was also held by a division bench that a suit for partition is triable by the court which is competent to try the suit valued at the entire value of the property and not at the value of the plaintiff's share.6. the value of the whole property sought to be partitioned is rupees 12,000/-. valuation of the suit determines the forum of appeal. thus, the appeal could not be entertained by the learned district judge. he was justified in returning the memorandum of appeal for presentation to the proper.....
Judgment:
ORDER

P.K. Mohanti, J.

1. The sole question for consideration in this Civil Revision is whether in a suit for partition of joint family property, the valuation of the suit should be made taking into view the value of the entire property or the share of the property which the plaintiff claims.

2. The plaintiff filed Title SuitNo. 7 of 1971 in the Court of the Subordinate Judge, Sambalpur in forma pauperi for declaration of title to and recovery of possession of the B schedule lands and in the alternative for partition of her share in the A schedule properties. The entire property measuring 25.78 acres described in Schedule A of the plaint was valued at Rs. 12,000/-. The plaintiff's share in the property was valued at Rs. 3,000/-. The B schedule properties measuring 5.98 acres were valued at Rs. 3,000/-. During the trial, the plaintiff gave up the relief for declaration of title and recovery of possession of B schedule lands end filed a memo, to that effect. The trial court passed a preliminary decree for partition of the plaintiffs 1/4th share in the A schedule properties. Aggrieved by the preliminary decree, defendants 1 (a), 1 (b) and 1 (c) filed Title Appeal No. 52 of 1974 in the court of the District Judge of Sambalpur valuing the appeal at Rs. 3,000/-and paying a fixed court-fee of Rs. 22.50, By the impugned order, the learned District Judge held that the appeal ought to have been valued at Rs. 12,000/- which is the value of the whole property and on the basis of such finding he held that he had no pecuniary jurisdiction to entertain the appeal and accordingly returned the memorandum of appeal for presentation to the proper forum. It is against this order that the present Civil Revision has been preferred,

3. It is urged on behalf of the petitioners that the value Of the plaintiff's share in the property would determine the jurisdiction of the court and not the, value of the whole property. Reliance is placed on a decision reported in (1962-28 Cut LT 433, Chadhai Behera v. Parbati) wherein it was held at follows;

'Law is well settled that where there is dispute over the plaintiff's share and the plaintiff seeks adjudication of histitle and for partition after such adjudication, it is the value of the plaintiff's share which will determine the jurisdiction of the court and not the value of the entire property.'

4. In the instant case, the plaintiff sought for declaration of title to and recovery of possession of B schedule properties or in the alternative for partition of her share in the A schedule properties. Subsequently, she gave up the relief for declaration of title and recovery of possession in respect of the B schedule properties. Though the plaint was not amended yet the trial proceeded on the footing that the suit was one for partition pure and simple and accordingly a preliminary decree for partition of the plaintiffs 1/4th share in the entire property was passed. There was no dispute with regard to the plaintiff's share and the question of adjudication of her title to the property did not arise, In the case cited above, there being a dispute over the plaintiff's share and the plaintiff having sought for a declaration of her title and for partition after such adjudication it was held that the value of the plaintiff's share would determine the jurisdiction of the court and not the value of the entire property. The principle enunciated in that case is therefore not applicable to the present case,

5. In a simple suit for partition it is the value of the whole property which determines the jurisdiction of the court, and not the value of the plaintiff's share only. In such a suit, the court has to deal with the entire property. It may on the application of the defendants effect partition of their shares. Therefore the valuation of the suit for the purpose of the jurisdiction cannot be the value of the plaintiff's share only, I am fortified in this view by a Bench decision of the Patna High Court reported in AIR 1923 Pat 342 (Ranjit Sahi v. Maulavi Kasim). Their Lordships held that there is a distinction between suits for partition pure and simple where the plaintiff is in joint possession of his share and there is no dispute as to the title or share, and suits where the plaintiff seeks for an adjudication of his title or extent of share end for partition after such adjudication. It was clearly laid down that in the latter case it is the value of the plaintiffs share which would determine the jurisdiction of the court and not the value of the entire property. But if there is no dispute regarding the title of the plaintiff and the only question before the court is as regards partition, the value of the whole property sought to be partitioned must be the value for the purpose of jurisdiction. In the case of Hajani Kanta Bag v. Raja Bala Dasi, AIR 1925 Cal 320 it was also held by a Division Bench that a suit for partition is triable by the court which is competent to try the suit valued at the entire value of the property and not at the value of the plaintiff's share.

6. The value of the whole property sought to be partitioned is Rupees 12,000/-. Valuation of the suit determines the forum of appeal. Thus, the appeal could not be entertained by the learned District Judge. He was justified in returning the memorandum of appeal for presentation to the proper forum.

7. There is no merit in this Civil Revision and it is accordingly dismissed, but in the circumstances without any, order as to costs,


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