(1) This revision petition has been filed under section 115 of the Code of Civil Procedure by the defendants against the order of the Sub-Judge, I Class, dated 25th October, 1972, by which he has held that the value of the suit falls within his pecuniary jurisdiction.
(2) The material facts of the case lie in a narrow compass. The plaintiff respondent instituted a suit for partition and separate possession of 1/45th share, besides rendition of accounts. The valuation of the suit as given in the plaint is as follows :
'1. For the purposes of court fee, a fixed court fee of Rs. 20.00 has been paid, as the plaintiffs are in part possession of the properties in dispute.
2. For purposes of jurisdiction Rs. 5000.00 being equal to the market value of the interest claimed by the plaintiffs in the properties in dispute.
3. For the purposes of rendition of accounts Rs. 1000.00 for the purposes of jurisdiction Rs. 200.00 for purposes of court fee, on which a court fee of Rs. 20.00 has been paid. The total court fee paid is Rs, 40.00 on the plaint. The total value of the suit for purposes of jurisdiction is Rs. 6000.00 '
(3) The defendant-petitioners contested the suit and inter alias raised to preliminary objections, viz. (1) the suit was barred by rest judicata, and (2) that the suit had not been properly valued for purposes of court fee and jurisdiction. These pleas form subject matter of issues 3 and 4 respectively. Both the issues have been answered by the court below in favor of the plaintiff respondents. Feeling aggrieved, the petitioners have filed this revision and have challenged the findings of the court, on both the issues. It is, however, conceded between the parties that I should d,ecide issue No. 4 first and should I come to the conclusion that the court below had no jurisdiction to try the suit, then it is not necessary for me to discuss issue No. 3 as the same will be non est. On the other hand, should I uphold the finding on issue No. 4, then I should decide issue No. 3 as well. Under the circumstances, I will take up for consideration issue No. 4.
(4) The court below has held that the plaintiffs have claimed 1/45th share of the property and for purposes of jurisdiction, Rs. 5000.00 being equal to the market value of the interest claimed by the plaintiffs is the valuation of the property in dispute and as such the jurisdictional value of the suit was only Rs. 5000.00 , which fell within the competence of the court below. The court relied upon Shibgobinda Tribedi v. Suriyab Ali Tribedi, Air 1970 Tri 64, Yumlembam Ningol Leinajam Ongbi Baruni Devi v. Naorem Ningol Leimajam Ongbi T. Devi, Air 1968 Manipur 52(2) and Sabastian Antonio Texeira v. Rodolf Minguel Texcira, : AIR1962Bom4 , and held that the subject matter of the suit consisted only of share claimed by the plaintiffs and not the whole of the properly. Consequently, issue No. 4 was answered in favor of the plaintiffs. In my opinion, the decision of the court below is legally not sustainable and it has committed an error in assuming the jurisdiction which it does not possess. The precuniary jurisdiction of the court of Sub-Judge, I Class in Delhi is up to Rs. 25.000.00 and from Rs. 25.000.00 to Rs. 50.000.00 with the District Court, and suits above the valuation of Rs. 50.000.00 are tried on the original side of the High Court.
(5) The relevant legal position may now be examined. The partition suits fall in two categories, viz. (1) in which the plaintiff is out of possession, and (2) in which he is in joint possession. So far as the first category is concerned, the plaintiff has to recover possession of the property and he has to value the suit for purposes of court fees under section 7(v) of the Court Fees Act on the market value of the share in the property. This valuation for purposes of court fees in view of section 8 of the Suits Valuation Act, also constitutes the value for purposes of jurisdiction. The High Court of Punjab has in a Full Bench decision, Krishan Kumar Grover v. Parmeshwari Devi, , held likewise. This, view also finds support from a decision of the Judicial Committee reported as Bai Shevantibai v. Janardhan Raghunath Warick. , which has also been relied upon in a number of cases cited at the bar. This category of cases does not present any difficulty and admits of no other answer. The problem, however, is different when we consider the second category of partition suits, where the plaintiff is in joint possession.
(6) In such cases, if the plaintiff wishes to enforce a right to share a joint family property, the court fee will be paid as prescribed by sub-clause (b) of clause (iv) of section 7 of the Court Fees Act. If it is not a case of joint family property and the plaintiff claims separate partition of the property of which he is in joint possession, the suit is of the nature in which it is not possible to estimate at money value the subject matter in dispute (and it is not otherwise provided for), in such suits, the court fees paid will be as prescribed by clause (vi) of item 17 of the Second Schedule of the Court Fees Act, amounting to Rs. 19.50, as amended by a local Punjab Amendment Act as extended to Delhi on 21st July, 1959 with effect from 1st August, 1959. Such suits can, for purposes of jurisdiction, not follow the valuation fixed for purposes of court fees. Reference in this connection may be made to a decision of the High Court of Lahore, Nikka and others v. Fazal Dad Khan, Air 1930 Lah 839, where a Division Bench held as follows :
'IN an appeal from a suit for possession by partition of certain land where the plaintiff alleges that he was in joint possession of the property in suit and the finding of the trial Court is to the effect that he was in such possession, the provisions of Court Fees Act applicable are Art. 17(6), Sch. 2 and not S. 7(4)(b). The court-fee payable in such case is, thereforee. Rs. 10.00 and not an ad valorem court-fee on the market price of plaintiff's share of the property.'
This rule is still a good law in Punjab and Delhi. A reference may also be made to a Division Bench authority of the High Court of Calcutta, Jugal Chandra Mondal v. Manindra Mondal, : AIR1958Cal537 , where the Division Bench construing similar provi- sions of the Court Fees Act, as amended in Bengal, came to the same conclusion and held that the distinction between Schedule Ii, Article 17, clause (va) and section 7(viA), turned on the averments in the plaint as to whether the plaintiff was or was not in possession of the properties of which he came to be co-sharer and if he was in possession, then the relevant, clause (va) of Article 17, Schedule Ii would apply and if he was not then the court fees will be paid in accordance with section 7 of the Court Fees Act.
(7) How to determine the jurisdictional value of such partition suits in which the plaintiff is in possession Section 9 of the Suits Valuation Act reads as follows :
'WHEN the subject matter of suits of any class, other than suits mentioned in the Court-fees Act (VII of 1870), section 7, paragraph (v) and (vi), and paragraph (x), clause (d), is such that in the opinion of the High Court it does not admit of being satisfactorily valued the High Court may, with the previous sanction of the State Government, direct that suits of that class/shall for the purposes of the Court Fees Act, 1870 (VII of 1870), and of this Act and any other enactment for the time being in force, be treated as if their subject matter were of such value as the High Court thinks fit to specify in this behalf.'
For the sake of ready reference, I shall also quote section 8 of the Suits Valuation Act, which does not apply to the instant case :
'8 Where in suits other than these referred to in the Court Fees Act, 1870 (VII of 1870), section 7, paragraphs (v), (vi) and (ix) and paragraph (x) clause (d), court fees are payable ad valorem under the Court Fees Act, 1870, the value as determinable for the computation of court fee and the value for purposes of jurisdiction shall be the same.'
(8) In exercise of powers conferred on the High Court by section 9 of the Suits Valuation Act the High Court has with the previous sanction of the State Government, framed rules. These rules are quoted in extenso in Part C of Chapter Iii of Volume I of the Rules and Orders of the High Court of Punjab. Rule 8 reads as follows : Court fee. (a) As determined by the Court Fees Act. 1870. Value. (b) For the purposes of the Suits Valuation Act, 1887, and the Punjab Courts Act, 1918 the value of the whole of the property as determined by sections 3, 8 and 9 of the Suits Valuation Act, 1887'.
In my opinion, the expression 'whole of the proprty' occurring in Rule 8, means the whole of the property which is the subject matter of the suit for partition and it is not confined to the plaintiff's share of the property. In contradistinction where in a State the rules provide for the valuation to be determined on the plaintiff's share of the property, different considerations may arise. But the rule prevalent in this territory determines the valuation as the value of the whole of the property. There can be found a valid reason in support of the rule. In a suit for partition it is not only that the plaintiff claims separate possession of the share of the property, but the court has to deal with property as a whole and determine the shares of other persons as well, and in doing so it may separate their shares or may also order sale of the whole property by public auction. Thus, the court will be exercising its power and jurisdiction in respect of the whole of the property and not only in respect of the plaintiff's share. thereforee, the rule framed envisages jurisdictional value of the suit to be the value of the whole property rather than merely the value of plaintiffs share. Consequently, the valus of the whole of the property of the parties out of which the plaintiff has claimed the share and not merely the value of the plaintiff's share must fall within the pecuniary jurisdiction of the court trying the suit. In this view of the matter, in the instant case, the share of the plaintiffs in the property (being l/45th) is valued at Rs. 5,000.00 and, thereforee, the value of the whole property comes to about Rs. 2,25,000.00 . The trial court must, indeed, be able to partition all the shares in the property and pass a final decree in respect of the whole property. The court below does not possess this pecuniary jurisdiction.
(9) Surely we are not concerned with the propriety of the rule of the court and have to apply as it exists. In other states, for example, Mysore, Kerala, Madras and Rajasthan the statutory law determines the jurisdiction value at the value of the share of the plaintiff, but those authorities would not apply to the facts of the instant case and so it is not necessary to consider the authorities cited at the bar. It must, however, be observed that neither of the counsel for the parties has been able to cite any authority to support the contentions on the basis of the rule similar to ihe one in force in Punjab and Delhi with which we are concerned.
(10) As a result, I find that the order of the court below suffers from jurisdictional error and its finding on issue No. 4 is erroneous and is set aside. It is held that the court below has no pecuniary jurisdiction to try the suit and it must return the plaint for presentation to a court of competent jurisdiction. The findings of the lower court on issue No. 3 will not bind the court of competent jurisdiction which would be seized of the suit.
(11) Accordingly the revision is allowed and its costs will abide by the result of the suit.