G.N. Das, J.
1. This rule was obtained by the defendants against an order of a learned Subordinate Judge valuing the suit instituted by the plaintiffs for purpose of jurisdiction of the Court.
2. In order to understand the question which was pressed before us, it is necessary to state the case made by the plaintiffs opposite-parties in their plaint. The plaintiffs' case is that the predecessors of the parties endowed certain properties in favour of the deity Sree Sree Iswar Sridhar Jiu and in course of succession the plaintiffs are now entitled to participate in the sheba and puja of the deity. It is alleged that by mutual arrangement the sheba and puja of the deity is performed by turns, the shobaits having respective palas of their own. The plaintiffs' allegation is that the defendants arc not allowing them to enjoy the privilege of worshipping the deity and performing the sheba and puja of the deity during the pala of worship. They therefore brought this suit for the purpose of declaring that the plaintiffs and the pro forma defendants are entitled, to thepala of worship for six months from Baisakb to Aswin. They also prayed for an injunction res. training the principal defendants from interfering with their enjoyment of the disputed pala of worship and from not giving them facilities for that purpose. There is no allegation that the plaintiffs have been dispossessed from the debottar properties nor is there any prayer for recovery of possession of the said properties.
3. In the Courts below this suit had a chequered career over the simple question of valuation of the relief, The plaintiffs valued the relief at Rs. 100 and the plaint was filed in the Munsiff9 Court. On the objection of the defendants, the matter was ultimately remitted to a commissioner for valuing the shebaiti right. The commissioner valued the shobaiti right at Rs. 9,247-8-0. The learned Munsif accepted this valuation and directed the plaint to be returned for presentation to the proper Court as the learned Munsif was not competent to try suits up to that value. On appeal the learned Subordinate Judge was of opinion that the suit was valued at Rs. 1,747-8-0 and was therefore within the pecuniary jurisdiction of the Munsif.
4. Against this decision, the defendants have came up on revision and obtained this rule on the limited ground that in valuing the suit the expenses incurred for realising the profits should not be deducted. Such a contention presupposes that the suit comes within Section 7(v)(a), Court-fees Act. Section 7(v)(a), Court-fees Act, relates to suits for possession of land, building and garden. I have already stated the case made by the plaintiffs, In substance it is a suit for declaration of the right to a pala, and for an injunction restraining the defendants from interfering with the plaintiffs' exercise of that right, It is entirely erroneous to suppose that this is a suit for recovery of possession of the debottar property. In my opinion, this is a suit which ought to come within the purview of Section 7(iv)(a), Court-fees Act, namely, a suit for declaration where consequential roliel is prayed for. In such a suit the plaintiff has the option of valuing his relief. This right is undoubtedly subject to correction under the provisions of Section 8(c), Court-fees Act, provided there is an objective standard of valuation. In the pro-sent case, however, there is no such standard. It is impossible for any Court to ascertain what the value of a pala would be. In the plaint it is clearly asserted that the property is absolute debottar property and as such the whole of the income was properly payable for the performance of sheba and puja of the deity reserving no profits whatsoever to the paladar. The deity's title is not in controversy, on the allegations made in the plaint. The title to the property also is not in controversy. It is only the right to perform the sheba and puja that is in litigation. In the circumstances, in my opinion, Section 7(v)(a), Court-fees Act, has no application whatsover.
Mr. Bose for the petitioner, however, contended that the view taken by us is opposed to two Bench decisions of this Court in the cases of Raj Krishna Dev v. Bipin Behari Dey, 40 Cal. 245 and Manik Chandra v. Dambharudhar Sarma, 126 Ind. cas. 267 (cal.). In my opinion, these cases are clearly distinguishable. In the case first cited, the plaintiff alleged that he was the sole shebait of the deity and that he was seeking to recover possession from the defendants who, on the plaintiff's allegation, were not interested in the deity's property. That was a case where in substance the deity sought to recover possession of the deity's properties from certain strangers. There was therefore an objective standard of valuation in that case.
5. In the later case cited, namely, the case of Manik Chandra v. Dambharudhar Sarma, 126 ind. cas. 267 (cal.), there was an express averment that the plaintiff had been excluded from the debottar property, and as such the case came within s. 7(v)(a), Court-fees Act. The present case, in my opinion, is akin to the case of Hridey Kishore v. Hari Bhusan, 68 cal. L. J. 171. As Guha J. rightly pointed out, that suit was intended to enable the plaintiff to exercise his power of management in regard to debottar properties and to injunct the defendants from interfering with the exercise of that right. I am accordingly of the opinion that the valuation as put by the plaintiffs on their plaint was correct and was not liable to be called in question by the defendants.
6. Mr. Bose contended before us that this rule was limited to a particular ground and the whole matter was not before us. In my opinion, the question of valuing the subject-matter of the suit was specifically raised before the Courts below and in order to determine the rule itself it is necessary to investigate into this question. In any event, this Court is perfectly competent to see that proper orders are made when the matter comes up in revision before this Court. The mere fact that the plaintiffs did not move should not stand in the way of this Court making an order in accordance with law, as all the necessary parties are represented before us.
7. After this revision case has been argued at some length Mr. Bose wanted to withdraw this revision petition. In my opinion, such a course should, not be permitted at the stage the case reached when such prayer was made.
8. In these circumstances, this rule must be discharged but in the circumstances of this case the parties will bear their own costs in this rule. The suit will proceed on the valuation as originally made by the plaintiffs.
Guha Bay, J.
9. I agree.