1. This Rule was obtained by the plaintiffs calling on the defendants to show cause why an order of the Subordinate Judge of Howrah, dated the 5th of January, 1924, affirmed in appeal by the District Judge on the 3rd March, 1924, should not be set aside or any other order should not be passed by this Court as to this Court may seem fit. The facts out of which this application arises are these. The plaintiff in the plaint filed by him alleged that he was entitled to a 4 annas share of the family properties along with some of the defendants. The plaintiff farther alleged that he was in possession but that a cloud had been thrown upon his title on account of a certain suit previously instituted and also on account of an erroneous record in the record-of-rights. The plaintiff on establishment of his title prayed for partition of the family properties which he valued at Rs. 2,500. The plaintiff paid a Court-fee of Rs. 20 for partition and also paid ad valorem Court-fee upon the 4 annas share of the property under partition. It appears that the defendants objected to the trial of the suit by a Subordinate Judge on the ground that the value of the suit both for jurisdiction and for Court-fees was, under Section 8 of the Suits Valuation Act, triable by a Munsiff and not by a Subordinate Judge. The learned Subordinate Judge gave effect to that contention of the defendants and directed that the plaint be returned to be filed in the proper Court. There was an appeal by the plaintiff but on appeal the order of the Subordinate Judge was upheld. Then the plaintiff moved this Court for revision of the order. It was contended by the learned Vakil for the petitioner that as this was a suit for partition the jurisdiction of the Court should be determined by the value of the share claimed in the suit. It is quite clear that ordinarily a suit for partition is triable by the Court which is competent to try a suit valued at the entire value of the property and not the subject-matter of the share which is to be partitioned. It is not necessary to quote many cases on this point. The case of Bidhata Rai v. Ram Charitar Rai (1907) 12 C.W.N. 37, the case of Kirty Charan Mitter v. Annath Nath Deb (1882) 8 Cal. 757 and the case of Lata Bhugwat Sahay v. Rai Pashu Pati Nath Bose (1905) 10 C.W.N. 564 are authorities which show that it is the entire value of the property which determines jurisdiction and not of the share which the plaintiff claims in the property. Now if it were a simple suit for partition there could be no question that the suit is triable in the present case by the Subordinate Judge and more specially so, as the plaint as it was presented by the plaintiff contained a clear statement that the plaintiff was in possession of the property. But it appears in the present case on the objection of the defendants a question was raised as to whether it was a simple suit for partition or whether it was a suit really for a declaration of the plaintiff's title and also his rights to joint possession and then a suit for partition when such title and possession are established. The mere fact that in a suit for partition a question as to the title of the plaintiff is raised and it is necessary to determine such a question before a partition can be directed would make no difference to its being a partition suit. In the case of Mohandra Chandra Ganguli v. Asutosh Ganguli (1893) 20 Cal. 762 it was held to quote the words of their Lordships:
It may be that to decide the question, what property is in the possession of one member as a member of a joint family, other questions will have to be tried, but if the plaintiff is entitled to have the property partitioned upon a ten rupee stamp, the fact that the enquiry will be a long and difficult one does not affect the question of the stamp that will have to be paid for it.
2. But it seems to us that in the present case, the plaintiff had to establish his title and had to establish his right to joint possession, which was denied before he could seek partition of the property in suit. In that case the position would be as was laid down by their Lordships in the case of Kirtyi Char an Mitter v. Annath Nath Deb (1882) 8 Cal. 757 that the plaintiff would be bound to pay ad valorem Court-fee upon the value of the share that he claimed. Sir Richard Garth, C.J., in delivering the judgment of the Court said as follows:
If the plaintiff's suit had been to recover possession of, or establish his title to, the share which he claims in the property, he must have paid an ad valorem stamp-fee upon the value of that share. But as I understand, he is already in possession of his share, and all that he wants is, to obtain a partition, which is merely as explained by the learned Judges in the case of Rajendra Lal Gossami v. Shama Charan Lahoory (1901) 6 C.W.N. 318 to change the form of his enjoyment of the property, or in other words to obtain a divided, instead of an undivided share.
3. Here as I have already stated the suit as originally framed was one in which the plaintiff asserted that he was in possession of the property. Therefore the plaint as framed, was clearly one for partition and was unquestionably triable by the Subordinate Judge. It was on the defendant's plea that the plaintiff was not in possession and that it was really an attempt to establish title and then to obtain possession by partition, the plaintiff has paid Court-fee ad valorem on the value of his share. Therefore, it seems to us that so far as the Court-fees are concerned all that could possibly be demanded has been paid by the plaintiff. Then a question arises whether the case is to be tried by the Subordinate Judge or by the Munsiff. In our opinion, the Munsiff would have no jurisdiction to entertain the suit so far as the claim for partition is concerned. It has never been doubted that a plaintiff can in a partition suit, if necessary, establish his title and his right to joint possession and then if his title is good, demand in the same suit possession, not joint possession but possession by partition. If this is so, the jurisdiction of the Court would be determined by the value of the entire property which is sought to be partitioned. It was contended by the learned vakil showing cause as has also been held by the Courts below. that where an ad valorem Court-fee is paid under Schedule 2, Article 17, Clause 6 of the Court Fees Act the jurisdiction of the Court according to the Civil Suits Valuation Act, Section 8, would be the same as the valuation for the Court-fees. That undoubtedly would be so, where the suit is of a simple character and of the character contemplated by that article of the Court-Fees Act. But where the suit is not a simple suit contemplated by that article but is a suit for partition then the article applicable would be 17, Clause. 6, Therefore, in a case like this, in our opinion, Section 8 of the Civil Suit Valuation Act has no application. We think, therefore, that the learned Subordinate Judge erroneously refused jurisdiction to try the suit. The learned Vakil for the opposite party argued that assuming that the Subordinate Judge and the District Judge were wrong it is not a case in which we should interfere in our revisional jurisdiction. We think that it is a fit case in which the Court not only ought but should interfere in revision. It may be conceded that ordinarily this Court does not interfere with interlocutory orders in a suit. But the cases show that in a fit case this Court would interfere. In the case of Jatendra Nath Roy Chowdhury v. Hari Charan Roy Chowdhury (1915) 20 C.L.J. 426, Mr. Justice Mukerji in dealing with an objection similar to the one now raised by the learned Vakil said as follows:
We may add that it was faintly suggested on behalf of the opposite party that this Court is not competent to grant relief, even if satisfied that the order of the Subordinate Judge is erroneous and unjust. We are not prepared to take such a restricted view of the jurisdiction of this Court to grant relief, in the exercise either of our revisional powers or the power of superintendence vested in this Court by the Indian High Courts Act, 1851. Instances are by no means rare whore in very exceptional cases this Court has interfered and set matters right by the reversal of interlocutory orders.
4. And their Lordships referred to a number of cases in support of that view. But in the present case there is a further distinction in favour of our interference in these proceedings. It appears that the result of the decision of the learned Subordinate Judge resulted in his refusal to entertain and try the suit and although a preliminary question as to whether the Court has jurisdiction or not was a question which had to be determined by interpreting certain sections of the Court Fees Act and of the Civil Court Jurisdiction. Act still the result of that decision is either exorcise or refusal of jurisdiction. In this view I am supported by clear authority in the case of Shew Prosad Bangshidar v. Ram Chandra Habibux (1914) 41 Cal. 323 where Mr. Justice Woodroffe in the course of his judgment at page 341 said as follows:
Reference has also boon made on this point to a decision. The Maharaja of Burdwan v. Apurba Krishna Roy (1911) 15 C.W.N. 872. This was also a case of refusal to exercise jurisdiction and all that the Court held was that it was immaterial that such refusal was made upon a mis-apprehension of the true effect of the statutory provision on the subject. This appears to me to be obvious. The decision rests on the well-known principle that a Judge cannot assume as a matter of law that which in fact had no existence in law and so give himself jurisdiction. He cannot by wrongly determining a question give himself jurisdiction and in the same way he cannot by a wrong determination of the meaning of the statute deprive himself of the jurisdiction which properly belongs to him and if he refuses jurisdiction, in such a case the High Court may interfere whether the question has been rightly or wrongly decided by him.
5. This is exactly the case here. The Courts below, as I have already stated, upon an erroneous interpretation of the provision of the Court-Fees Act and also Civil Courts Jurisdiction Act, came to a wrong conclusion that the suit was not triable by the Subordinate Judge. We think, therefore, that this is a case in which this Court should interfere and accordingly, we make this Rule absolute with costs, set aside the order of the Subordinate Judge as affirmed by the District Judge and direct that the case be tried by the Subordinate Judge in accordance with law.
6. We assess the hearing fee in this Rule at two gold mohurs.
7. I agree.