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Krushna Chandra Tripathy and anr. Vs. Lokanath Mohapatra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 276 of 1965
Judge
Reported inAIR1969Ori140
ActsOrissa Court-fees Act, 1870 - Sections 7 - Schedule - Article 5; Code of Criminal Procedure (CrPC) - Sections 145; Tenancy Law; Orissa Estates Abolition Act, 1952 - Sections 5; Code of Civil Procedure (CPC) , 1908 - Sections 100, 101 and 115
AppellantKrushna Chandra Tripathy and anr.
RespondentLokanath Mohapatra and ors.
Appellant AdvocateA. Mohanty, Adv.
Respondent AdvocateSrinivas Misra, Adv. (2) and ;L. Rath, Adv.
DispositionPetition dismissed
Cases ReferredIn Upendra Chandra v. Satcouri Dhar
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........of presenting the plaint.''5. plaint or memorandum ofappeal in a suit to establish or disprove a right of occupancy.proper feefifty nayapaise.'3. the learned courts below made a confusion in equating the value of the occupancy right with the entire proprietary right. from the entire proprietary right, the right of the landlord must be deduced to determine the value of the occupancy right. doubtless the value of the landlords' interest is very little compared to the interest of the occupancy raiyats. but all the same the legal concept is to be made clear regarding the difference between the value of the occupancy right and that of the entire proprietary right. in upendra chandra v. satcouri dhar, air 1914 cal 530 the aforesaid distinction has been pointed out.4. mr. mohanty's argument.....
Judgment:
ORDER

G.K. Misra, J.

1. Plaintiffs' case is that they were occupancy raiyats of the disputed lands, under defendants 1 to 6 who were Tanki Baheldars (tenure-holders). The tenure vested in the State of Orissa under the Orissa Estates Abolition Act in 1963. The plaintiffs are therefore occupancy raiyats under the State. Despite this averment the plaintiffs however valued the suit on the footing that it was a suit between the tenants and their landlords defendants 1 to 6. The defendants asserted that the market value of the disputed lands would be about Rs. 30,000, and the Munsif's court, Puri having jurisdiction to try suits upto the value of Rs. 4,000 had no jurisdiction to try the suit. The learned Munsif determined the question of valuation as a preliminary issue and held that the market value of the lands is about Rs. 10,000 and that he had no jurisdiction to try the suit. He accordingly directed return of the plaint under Order 7, Rule 10 C. P. C. The learned Subordinate Judge dismissed the appeal filed by the plaintiffs against the adverse order. Against the confirming order of the lower appellate Court this Civil revision has been filed.

2. Mr. Mohanty contends that the suit has been framed for recovery of the lands in which the plaintiffs claim occupancy right from the landlords defendants 1 to 6, and accordingly it is only the occupancy right which would be valued, and the market value of the lands would not determine the jurisdiction of the Court. He places reliance on Section 7, Clause (xi), Sub-clause (e) and Schedule II, Article 5 of the Court-fees Act, 1870, as amended in Orissa. Section 7(xi)(e) runs thus :--

'To recover the occupancy of immovable property from which a tenant has been illegally ejected by the landlord;

According to the amount of the rent of the immovable property to which the suit refers, payable for the year next before the date of presenting the plaint.'

'5. Plaint or memorandum ofappeal in a suit to establish or disprove a right of occupancy.

Proper FeeFifty nayapaise.'

3. The learned courts below made a confusion in equating the value of the occupancy right with the entire proprietary right. From the entire proprietary right, the right of the landlord must be deduced to determine the value of the occupancy right. Doubtless the value of the landlords' interest is very little compared to the interest of the occupancy raiyats. But all the same the legal concept is to be made clear regarding the difference between the value of the occupancy right and that of the entire proprietary right. In Upendra Chandra v. Satcouri Dhar, AIR 1914 Cal 530 the aforesaid distinction has been pointed out.

4. Mr. Mohanty's argument is however wholly academic in the facts and circumstances of this case. In paragraph 7 of the plaint it was admitted that defendants I to 6 ceased to have any interest in the Tanki Bahel tenure after the date of vesting in 1963. No doubt defendants 1 to 6 resorted to the plea that they were Tanki Baheldars who were in khas possession of the lands and as such entitled to retain possession. Whatever may be the defence plea, on the plaintiffs' own case defendants 1 to 6 should be treated as rank trespassers.

It is to be noted that the 145, Criminal P. C. order ended in favour of defendants 1 to 6. In the circumstances, on the admitted case in the plaint, the suit cannot be treated to be one between the tenants and the landlords so as to bring into operation Section 7(xi)(e). On the case as laid the plaintiffs must pay court-fee on market value of the lands as in pith and substance the suit amounts to declaration of title and recovery of possession of the lands from trespassers.

5. Both the courts have held that the value of the disputed lands is Rs. 10,000. This finding of fact cannot be disturbed in Civil Revision. The plaint was rightly returned.

6. In the result, the civil revision failsand is dismissed. But in the circumstancesthere will be no order as to costs of thisCourt.


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