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indrajit Behera and anr. Vs. Bhaja Meher and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 341 of 1965
Judge
Reported inAIR1969Ori257
ActsCourt-fees Act, 1870 - Sections 7; Suits Valuation Act, 1887 - Sections 3 and 8; Code of Civil Procedure (CPC) , 1908 - Sections 115 - Order 41, Rule 23
Appellantindrajit Behera and anr.
RespondentBhaja Meher and anr.
Appellant AdvocateR.K. Mohapatra, Adv.
Respondent AdvocateG.G. Das, Adv.
DispositionPetition allowed
Cases ReferredSisir Kumar Dutta v. Sushilkumar Dutta. The Special Bench of
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..........sale dated 24-9-37 being invalid beyond the lifetime of rukmani, title of the plaintiffs to the suit lands be declared and they be put in possession of the same.'defendants filed a joint written statement. amongst other pleas, they averred that the market value of the suit land would be more than rs. 7000/-, that the suit was grossly undervalued and that court fee was payable on the market value. the munsif of patnasarh has jurisdiction to try suits upto the value of rs. 4000/-. the suit being beyond the pecuniary jurisdiction of the munsif, should have been tried by the subordinate judge, bolangir. the learned munsif went into evidence and held that the suit was properly valued and was within his pecuniary jurisdiction. he did not examine as to which provision of the court-fees act.....
Judgment:
ORDER

G.K. Misra, J.

1. Sukru and Ghana were brothers. Plaintiffs are the sons of Sukru. The disputed property fell to the share of Ghana in a family partition. After his death, his widow Rukmani inherited the property and was in possession. She sold the disputed land to defendant-1 in 1937 for Rs. 350/- Plaintiffs' case is that they are the sole next reversioners of Ghana. On Rukmani's death on 12-4-53 they are entitled to the possession of the suit property. Defendant-1 had transferred a portion of the disputed land in favour of defendant-2. The main relief claimed by the plain-tiffs was worded thus-

'That the sale dated 24-9-37 being invalid beyond the lifetime of Rukmani, title of the plaintiffs to the suit lands be declared and they be put in possession of the same.'

Defendants filed a joint written statement. Amongst other pleas, they averred that the market value of the suit land would be more than Rs. 7000/-, that the suit was grossly undervalued and that court fee was payable on the market value. The Munsif of Patnasarh has jurisdiction to try suits upto the value of Rs. 4000/-. The suit being beyond the pecuniary jurisdiction of the Munsif, should have been tried by the Subordinate Judge, Bolangir. The learned Munsif went into evidence and held that the suit was properly valued and was within his pecuniary jurisdiction. He did not examine as to which provision of the Court-fees Act was applicable to this case. According to him, even if the market value was to be taken into consideration, it would not be more than Rs. 2000/- to Rs. 3000/-. But taking the view that the price of the property, as prevailing in 1937, would govern the case, he did not call for further court-tees and held that the suit was within his pecuniary jurisdiction. Against this order dated 28-9-65, the civil revision has been tiled.

2. Mr. Mohapatra raised the following contentions-

(i) In a reversionary suit of this nature, the essential relief claimed is for recovery of possession. Section 7(v)(c) of the Court-fees Act and not Section 7(iv)(c) would govern the case and the plaintiffs are to pay court-fees On the market value of the land; and

(ii) The market value of the land would be Rs. 7000/- and the learned Munsif exercised his jurisdiction illegally and with material irregularity in overlooking material pieces of evidence in arriving at the conclusion that the market value would be between two to three thousand.

Mr. G. G. Das, on the other hand, contended that as the plaintiffs claimed declaration of title and recovery of possession. Section 7(iv)(c) is applicable It is open to the plaintiffs to state the amount at which they value the relief sought. It is not for the Court to change it. He further contended that even if the market value would be taken into consideration, the learned Munsif's finding that it was between two to three thousand rupees is a finding of fact based on evidence and is not to be interfered with in civil revision, and that on the question of non-payment of proper court-fees, no civil revision lies at the instance of the defendants.

All these contentions require careful examination.

3. In (1907) 34 Ind. App. 87 (PC), Bijoygopal v. Krishna, the suit was for a declaration that an ijra granted by a Hindu widow of her husband's estate had become inoperative as against the plaintiffs (heirs of her husband) since her death, and for khas possession of the properties in suit with mesne profits. Their Lordships construed such a suit as being substantially one for possession. There was no necessity for the declaration prayed, or to cancel or set aside the ijra. The plaintiffs were entitled to trea! the ijra as a nullity, after widow's death It would be profitable to extract their Lordships' view in their own language:

'A Hindu widow is not a tenant for life, but is owner of her husband's property subject to certain restrictions on alienation and subject to its devolving upon her husband's heirs upon her death. But she may alienate it subject to certain conditions being complied with. Her alienation is not, therefore,absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court, and he shews his election to do the latter by commencing an action to recover possession of the property. There is, in fact, nothing for the Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir. It is true that the appellants prayed by their plaint a declaration that the ijra was inoperative as against them, as leading up to their prayer for delivery to them of khas possession. But it was not necessary for them to do so, and they might have merely claimed possession, leaving it to the defendants to plead and (if they could) prove the circumstances which they relied on for shewing that the Ijara or any derivative dealings with the property were not in fact voidable, but were binding on the reversionary heirs.

4. Thus as a reversionary suit is essentially one for possession, court-fee is payable under Section 7(v)(c). Section 7(v)(c) runs thus-

(v) In suits for the possession of land, houses and gardens -- according to the value of the subject-matter; and such value shall be deemed to be -

where the subject-matter is land, and-

xx xx xx (c) where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue,

and net profits have arisen from fifteen times such net profits;

but where no such net profits have arisen therefrom--the amount at which the Court shall estimate the land with reference to the value of similar land in the neighbourhood;

5. That to reversionary suits simpli-citer Section 7(v)(c) is applicable, is concluded by high authorities (See AIR 1922 Pat 615 (SB), Ram Sumran v. Gobindas; AIR 1938 Pat 22 (FB), Ram Khelawan v. Surendra Sahi; AIR 1949 Pat 328, Pursottim Choubey v. Rajpati Kuer and AIR 1946 Bom 363, Waman v. Naravan.) The limited owners had effected gifts in the first two cases and sales in the last two cases. There is no difference in the nature of a reversionary suit whether it is a case of gift or sale or lease. On the fundamental principle enunciated above, the authority of the Privy Council decision applies. The distinction as to the applicability of Sections 7(iv)(c) and 7(v)(c) was clearly brought out in AIR 1963 Orissa 71, Uchhab v.Ganesh, though it was not in relation to a reversionary suit.

Mr. Das placed reliance on AIR 1964 Mani 9, Rajkumar v. Nepram and AIR 1943 Sind 56, Karamchand v. Naraindas. The Manipur case did not make any reference to the Privy Council and the various authorities, already referred to, bripging out the distinction. With great respect I must say that the Manipur case was wrongly decided. The Sind decision is distinguishable on facts as it was not a purely reversionary suit and certain other reliefs were claimed in the plaint.

6. On the aforesaid analysis, the contention of Mr. Das has no force and court-fee is payable under Section 7(v)(c).The learned Munsif ignored this aspectof the matter.

7. If the civil revision had involved only the question of payment of court-fee, it would have been dismissed as no revision is entertainable on the question of court-fee at the instance of the defendants. But the revision cannot be thrown out if it involves a question of jurisdiction. In other words, if the suit has been undervalued, and on proper valuation being determined the Munsif would have no pecuniary jurisdiction and the suit would be triable by the Sub-Judge, it is open to the High Court to interfere in revision. This is concluded by AIR 1961 SC 1299, Rathnavarmaraja v. Smt. Vimla.

8. Under Section 7(v)(c) of the Court-fees Act, the value of the subject-matter, where it is land, is to be computed for the purpose of court-fee in two ways: where the net profits have arisen from the land during the year next before the date of presenting the plaint, the value would be fifteen times such net profits; and where no nett profits have arisen, the value would be the amount at which the Court shall estimate the land with reference to the value of similar land in the neighbourhood. Thus in both the cases, the market value of the land would be valuation for determination of court-fee.

9. The next question for consideration is as to what would be the valuation of the suit for the purpose of jurisdiction. Section 8 of the Suits Valuation Act enumerates suits in which the court-fee value and the jurisdictional value would be same. It specifically excludes suits, referred to in Section 7(v)(c) of the Court-fees Act, from its ambit. Section 3 of the Suits Valuation Act prescribes that the State Government may make rules for determining the value of land for purposes of jurisdiction in the suits mentioned in Section 7(v)(c) of the Court fees Act. The rules so framed would determine the value of any class of landor any interest in land. In Orissa no such rules have been framed under Section 3. Thus the valuation of suits, referred to in Section 7(v) of the Court-fees Act, cannot be determined in accordance with Section 3 of the Suits Valuation Act.

10. Question thus arises as to how such suits would be valued for the purpose of jurisdiction in the absence of rules being framed under Section 3. This matter directly came for consideration in AIR 1961 Cat 229 (SB), Sisir Kumar Dutta v. Sushilkumar Dutta. The Special Bench of the Calcutta High Court came to the conclusion that in the absence of rules framed under Section 3, the market value of the land, determined for the purpose of court-fees under Section 7(v)(c) of the Court-fees Act, would be the market value of the subject-matter of the suit for the purpose of jurisdiction. Such a conclusion was not based on the provision of Section 8 of the Suits Valuation Act but on the general principle that in the absence of rules, the value of the land must be the market value. It is not necessary to multiply authorities on this point. In this case, therefore; the market value of the land on the date of suit would determine the jurisdictional value.

11. The learned Munsif did not keep any of the aforesaid principles in view and committed serious illegality in think-ing that the market value of the land in 1937 would determine the jurisdictional value. He has not calculated the market value either by valuing the net yield at 15 times, if there is evidence for it, or by determining on the basis of admissible evidence the market value on the date of the suit. To illustrate, plaintiffs filed registered sale deed (Ext. 2) dated 12-6-1962. 6.72 acres were sold for Rs. 4300/-. P. W. 3 proved the sale deed but admitted that he had no personal knowledge of the transaction and that he was not in a position to give the extent of the land or its variety. Neither the vendor nor the vendee was examined. The learned Munsif was thus not in a position to compare this land with the land in suit. Both the sale deed and the connected evidence threw no light on the point in issue. The entire evidence has been examined in this manner.

12. Ordinarily this Court does not go into evidence in revision. The case must accordingly go back to the learned Munsif. On the evidence on record and In the light of the principle already enunciated, he would determine the market value of the land on the date of suit. If he finds that the value of the land exceeds Rs. 4000/-, he would have no jurisdiction to try the suit and the plaint would be returned to be filed before a competent Court. If on the other hand, he finds that the marketvalue of the land is less than Rupees4000/-, the suit would be tried by himwithout calling for further court-fees,as at the instance of the defendant, arevision is not entertainable merely onthe ground of insufficiency of court-fee.

13. In the result, the order of thelearned Munsif is set aside and the civilrevision is allowed. The case is remanded to the learned Munsif as indicatedabove. No costs.


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