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Sambhu Nath Singh and ors. Vs. Sankarananda Banerjee - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 3211 of 1980
Judge
Reported inAIR1981Cal196
ActsWest Bengal Court-fees Act, 1970 - Sections 7, 10 and 11; ;Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 10(1); ;Court-fees Act, 1870 - Section 8C
AppellantSambhu Nath Singh and ors.
RespondentSankarananda Banerjee
Appellant AdvocateManindra Nath Ghosh and ;Hazari Prosad Roy Choudhury, Advs.
Respondent AdvocateRanadeb Chaudhuri, ;A.N. Bose and ;Parimal Kr. Patari, Advs.
Cases ReferredTarai Tea Co. v. L. I. C.
Excerpt:
- .....that there was an agreement with the auction purchaser, tapan kumar banerjee, for purchasing the suit property for rs. 32,000/-. the plaintiff did not supply any data why he valued the relief claimed at rs. 1,300/-. the broad fact is that on the 2nd september, 1963. tapan kumar banerjee made an auction purchase of the disputed r s. plot no. 574/650 for rs. 27,100/-. even on 7-1-1975 the plaintiff purchased the property for rs. 25,000/- and filed the suit shortly thereafter. the provisions of section 11 of the act come into play and it is a fit case for exercising that power. the 'relief sought', within the meaning of section 7(vi)(a), is recovery of possession of the disputed property together the structures from the defendant regarding the disputed property. the plaintiff artfully.....
Judgment:
ORDER

B.N. Maitra, J.

1. On the 2nd September, 1963, one Tapan Kumar Banerjee auction purchased the disputed property appertaining to the R. S. Plot No. 574/650 for Rs. 27,100/-. One Ram Chandra Singh, predecessor of the petitioners, challenged that auction sale and filed Misc. Case No. 33 of 1966. Eventually that Misc. Case was compromised and Tapan Kumar's title admitted. The latter agreed to purchase the property for Rupees 32,000/-. Instead of acting up to his agreement, Ram Chandra remained in unauthorised occupation of the property. On the 17th January, 1975, the plaintiff purchased that property for Rupees 25,000/-. Shortly after that date he filed this title suit against Ram Chandra for recovery of possession describing him as a trespasser and valuing his relief at Rs. 1,300/- only. The defendant's objection is that the valuation of the disputed property exceeded the pecuniary jurisdiction of the court.

2. The learned Munsif heard the parties and decided against the defendant. Hence this revisional application by the defendant.

3. Mr. Manindra Nath Ghosh has contended for the petitioner that the case is not covered by clause (a) of paragraph (vi) of Section 7 of the West Bengal Court-fees Act. In fact the provision of paragraph (v) of Section 7 of the Act governs the case and the value of the subject-matter will determine that issue. Even if the paragraph (vi) (a) of Section 7 of the Court-fees Act is applicable, declaration of title is absolutely necessary for the disposal of the suit. In any view of the matter, the suit has not been properly valued. The questions of jurisdiction and classification are also involved. If such decision is allowed to stand, then the suit will be tried by the learned Munsif and there will be a first appeal to the District Judge. If the objection is accepted, then the suit will be tried by the learned Subordinate Judge and there will be a first appeal to this Court.

4. Mr. Ranadeb Choudhury has urged on behalf of the plaintiff opposite party that the case is on all fours with that of Amrit Lal v. Hiralal in (1966) 70 Cal WN 857. That was a suit for recovery of possession of immovable property from a licensee and no license fee was paid. The plaintiff put his own valuation. A Bench of our Court has stated that no order for ascertaining the value of the property could be passed because the Amending Court-fees Act no longer speaks about valuation of the property or the subject-matter. The amendment uses a significant expression 'relief sought is valued'. Valuation of the 'relief sought' is not the same thing as valuation of the 'property' itself or the 'subject-matter' of the suit, vide the page 860 of the report. Reference has also been made to the cases of Rathna-yamaraja v. Vimla, : [1961]3SCR1015 and Amal v. Bhagwan, (1981) 85 Cal WN 42. It has been stated that those two cases clearly show that where the court decides a question regarding the valuation, that is a matter between the plaintiff and the Government and a revision does not lie against such order. Since the plaintiff is not enjoined to ask for a declaration of title, the case is covered by the provision of Section 7(vi)(a) of the Court-fees Act A solenama was filed by Ram Chandra in Misc. Case No. 33 of 1966 and so there will be an estoppel. Section 8 of the Suits Valuation Act has been referred to. The court is to go by the statements in the plaint to determine the present controversy. Hence the plaintiff can put his own valuation. The relief claimed is the valuation of the mesne profits and not the subject-matter of the suit, which is the actual valuation of the disputed property.

5. So the first question is whether a revision lies. The case of Amal v. Bhagwan (supra), cited on behalf of the opposite party, is clearly distinguishable because in this case the plaintiff is not in possession of the disputed property. But in that case the plaintiff stated that he was in possession of the disputed property. He asked for an injunction on declaration of his title to the disputed land and put the valuation at Rs. 100/-. On the footing of the decision of the case of Rathnayamaraja v. Vimla (supra), it was held that such order was not re-visable. But the case of Shamsher Singh v. R. Prasad, : [1974]1SCR322 , which explained that decision of Rathnayamaraja v. Vimla, was not considered in that case of Amal v. Bhagwan (supra). It has been stated that the ratio of the decision in Rathnayamaraja v. Vimla's case is that no revision lies on a question of court-fee when no question of jurisdiction is involved. In this case, the question of jurisdiction clearly arises because if the valuation exceeds the pecuniary jurisdiction of the learned Munsif then the suit will be tried by the learned Subordinate Judge. There will be a first appeal to the High Court. Again the learned Munsif does not arrive at any finding that the valuation given by the plaintiff is adequate and the valuation does not exceed his pecuniary jurisdiction. He has assumed that the plaintiff can put his own valuation 'irrespective of the actual value of the property'. If no revision lies against this decision, then the provisions of Section 10, which enjoin that even the appellate court can dismiss the suit after recording a finding that insufficient court-fee was paid, and of Order 7, Rule 10 (1) Explanation of the Code, empowering the Court of Revision to direct a return of plaint, become purposeless enactments. Since the question of court-fee involves also the point of jurisdiction of the court to try the suit, it must be held that the application for revision is tenable.

6. The only other point is if the plaintiff's valuation can be accepted. The learned Munsif has not given any reasons why and how the plaintiff can put his own valuation. Section 7(vi)(a) of the Court-fees Act says that in a suit for recovery of possession of immovable property from a trespasser, where no declaration of title is either prayed for or necessary for disposal of the suit --according to the amount at which the relief sought is valued in the plaint, subject to the provisions of Section 11 of the Act. Before the repeal of the Court-fees Act, 1870, similar provision appeared in Section 8C of that Act.

7. In the case of Amrit Lal v. Hiralal ((1966) 70 Cal WN 857) (supra), it hasbeen stated that after the amendment of the Court-fees Act, 1870, there is no longer any reference to property or subject-matter of the suit. But in that case it has been, noticed that in a fit case the court can exercise its power under Section 8C of the Bengal Court Fees Act Now, Section 8C of the Bengal Court-fees Act, which corresponds to Section 11 of the West Bengal Court Fees Act of 1970, says that if the court is of opinion that the subject-matter of any suit has been wrongfully valued, it may revise the valuation, determine the correct valuation and may hold such enquiry as it thinks fit for such purpose. The position therefore is that even after the amendment of the old Court Fees Act, 1870, according to the provisions of Section 8C of the then Act, the court could form an opinion that the subject-matter of the suit had been wrongly valued. The contention put forward on behalf of the opposite party, that such amendment no longer spoke about 'subject-matter', is not acceptable.

8. In the case of Taramoni v. Mohammad Ali in (1976) 80 Cal WN 1082 : (AIR 1977 NOC 202) it has been stated that where the suit is for recovery of wakf property, the court can make an enquiry, if the valuation given is proper. If the court refuses to make an enquiry, its decision is liable to be set aside by the High Court. In the Bench case of Hindwire v. U. P. State Electricity Board reported in (1977) 4 Cal HN 829 the suit was for declaration that a bank guarantee for Rs. 91,900/- was not enforceable. A Bench of our Court has stated that there is an objective standard because the bank guarantee is for Rupees 91,900/- and so Section 7(iv) Clause (b) of the Court Fees Act applies. The Bench referred to the well-known decision of Shamsher Singh v. Rajinder Prasad : [1974]1SCR322 (supra). In that Supreme Court case, father had mortgaged the property of a Hindu joint family and a decree was passed against him. His sons filed a suit for declaration that the decree was void and for an injunction so that the decree could not be executed. Alagiriswami, J., has stated that the suit is in substance one for setting aside the decree or for consequential relief for injunction and so ad valorem court-fee is payable. In the Bench case of Tarai Tea Co. v. L. I. C. reported in : AIR1979Cal84 the plaintiff asked for a declarationthat the property in shares above 22 lakhs passed to it and for a mandatory injunction on the defendant to re-deliver those shares to the plaintiff. A Bench of our Court has stated that the value of relief is above 22 lakhs and so the court could direct the plaintiff to pay the balance of the Court-fee.

9. Sections 7(vi)(a) and 11 of the West Bengal Court Fees Act of 1970 have to be read together. Section 11 empowers the court to make an enquiry as to the valuation of any suit if it is of opinion that the subject-matter of the suit has been wrongly valued.

10. The plaintiff has not asked for declaration of title. No declaration of title to properly has either been prayed for or is necessary for the disposal of the suit. It is therefore held that Section 7(vi)(a) of the Act and not paragraph (v) (a) thereof applies.

11. The contention put forward on behalf of the opposite party, that there is no objective standard of valuation, cannot he accepted, There is an objective standard of valuation. Even para 4 of the plaint shows that there was an agreement with the auction purchaser, Tapan Kumar Banerjee, for purchasing the suit property for Rs. 32,000/-. The plaintiff did not supply any data why he valued the relief claimed at Rs. 1,300/-. The broad fact is that on the 2nd September, 1963. Tapan Kumar Banerjee made an auction purchase of the disputed R S. Plot No. 574/650 for Rs. 27,100/-. Even on 7-1-1975 the plaintiff purchased the property for Rs. 25,000/- and filed the suit shortly thereafter. The provisions of Section 11 of the Act come into play and it is a fit case for exercising that power. The 'relief sought', within the meaning of Section 7(vi)(a), is recovery of possession of the disputed property together the structures from the defendant regarding the disputed property. The plaintiff artfully avoided putting the figure of the mesne profits in the plaint. The valuation of such relief sought cannot be the paltry sum of Rupees 1,300/- or the value of the mesne profits. The objective standard of valuation cannot be less than Rs. 27,100/-. It is trite knowledge that auction purchase does not fetch the real price of the property sold and the price of property has been steadily increasing. The submissions made for the opposite party cannot be accepted. It is held that the subject-matter of the suit has been wrongly valued, that the valuation of the relief sought is not less than Rs. 27,100/- and that the suit has been arbitrarily valued at the patently absurd figure of Rupees 1,300/-. The trial court acted with material irregularity in passing such order.

12. Since the learned Munsif had no pecuniary jurisdiction to try the suit, the plaint must be returned.

13. The Rule is therefore made absolute and the impugned order set aside. The plaint be returned to the learned advocate appearing for the plaintiff for presenting it to the proper court.

14. Send this intimation to the trial court.

15. There will be no order as to costs.


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