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Smt. Raj Dulari Vs. Tarsem Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 5 of 1971
Judge
ActsHimachal Pradesh (Courts) Order, 1948; ;Suits Valuation Act, 1887 - Section 3; ;Punjab High Court Rules - Rule 1; ;Punjab High Court Order
AppellantSmt. Raj Dulari
RespondentTarsem Singh and anr.
Appellant Advocate S. Malhotra, Adv.
Respondent Advocate Romesh Chand, Adv.
DispositionAppeal dismissed
Cases ReferredInayat Husain v. Bashir Ahmad
Excerpt:
- .....contends that the jurisdictional value as fixed at the time of filing the suit in the case of a land suit will determine the forum of appeal and that the jurisdictional value will not vary. he relies on gajja singh v. gurdial singh (air 1960 punj 467) (fb)and on the provisions of section 11 of the suits valuation act. further, he contends that in view of the consistent practice that has been obtaining, the jurisdictional value in a pre-emption suit is governed by the rules framed under section 3 of the suits valuation act and that valuation will determine the forum of appeal also and that the value will not change.5. para 31 (a) of the himachal pradesh (courts) order 1948, reads as:--'save as otherwise provided by any law for the time being in force, appeals from decrees of courts.....
Judgment:

Chet Ram Thakur, J.

1. This Letters Patent Appeal is directed against the judgment and decree of a learned single Judge of the Delhi High Court, Himachal Bench, Simla, affirming the judgment and decree of the learned District Judge, decreeing the pre-emption suit filed by Tarsem Singh present respondent against Smt. Raj Dulari vendee, and his father Gulzar Singh, who had sold the land by a registered deed for a sum of Rs. 10,000/- on 24-4-1967. The plaintiff brought a suit for possession on the ground that the sale had been made by his father simply to deprive him of his rights and that the sale consideration as shown in the registered deed at Rupees 10,000/- was fictitious and that the only consideration that passed was Rs. 5,000/-. The plaintiff being the son of the vendor had a preferential right, and as such he sued for possession of land on payment of Rs. 5,000/- Smt. Raj Dulari contested the suit and pleaded that the plaintiff was made a figure-head and that the suit had been filed for the benefit of Jai Ram Ram Krishan, Bhagwan Dass, sons of Wazira, and Ram Krishan son of Attroo and that the expenses of litigation are being met by those persons, the plaintiff had no money to prosecute the litigation and that Smt. Khem Kaur, the next friend of the plaintiff, had waived the right to preempt the sale on behalf of the plaintiff. It was denied that the consideration of Rs. 10,000/- as shown in the registered sale deed was fictitious. It was pleaded that the vendor had purchased land in the name of the next friend of the plaintiff in Dehra Dun district and the sale wag for the benefit of the family and the plaintiff cannot pre-empt the sale. Further, it had been pleaded that the plaintiff constituted a joint Hindu family with his father. Gulzar Singh who had sold the land as manager of the coparcenary for the benefit of the joint Hindu family. This plea was controverted by the plaintiff. He said that he wag not a member of the coparcenary with his father nor was the property coparcenary that they were Saini agriculturists and were governed by agricultural custom obtaining amongst the Sainis of Paonta tehsil.

2. Several issues were framed and the trial Court held that the consideration of Rs. 10,000/- was not fictitious. The contention of the defendant that the sale was effected for the benefit of the joint Hindu family prevailed with the trial Judge and in view of this the plaintiff was non-suited. On appeal the learned District Judge held that the plaintiff and his fatherGulzar Singh were governed by customary law and that the plaintiff was entitled to pre-empt the sale. The defendant's counsel contended before the learned District Judge that the defendant had spent Rs. 260/- on registration and was also en-titled to recover that amount from the plaintiff. The learned District Judge allowed the appeal and reversed the judgment and decree of the trial Court and decreed the suit for possession on payment of Rs. 10,260/-. This amount was ordered to be deposited in the Court of the Senior Sub-Judge within two months from the date of the judgment and decree of the Court of the District Judge, failing which it was decreed, the suit would standi dismissed. Before the learned single Judge the judgment of the lower appellate Court was assailed on two grounds; firstly, that the District Judge was neither competent to entertain the appeal nor to decide the same as the decree wag in excess of his pecuniary jurisdiction and, secondly, that the mere finding that the parties are governed by customary law is in itself insufficient unless the Court gives a finding as to what that custom, is. Both these contentions were repelled by the learned single Judge. According to learned counsel for the appellant the learned single Judge has erred in deciding both these points against him.

3. While dealing with the first point he has made reference to paras 31 and 32 of the Himachal Pradesh (Courts) Order 1948 as also to para 2 (vii) of the said order. He has also argued that the decree has to specify, as required under Order 20 Rule 14 C. P. C. that the payment is to be made on a specified date failing which the suit would stand dismissed. That way, according to him, the payment is a part of the decree for possession and the District Judge could not pass any decree exceeding his pecuniary limit of Rs. 5,000/-. It is said that the market value of the land which is the subject-matter of the suit also exceeds this amount end the learned District Judge was not competent to entertain an appeal exceeding his pecuniary jurisdiction. It is contended that in passing a decree for possession on payment of Rs. 10,260/- he has acted in excess of his pecuniary jurisdiction. He also referred us to several cases in support of his view. According to him, it is the actual value of the property which determines the jurisdiction of the Court,

4. On the other hand learned counsel for the respondent contends that the jurisdictional value as fixed at the time of filing the suit in the case of a land suit will determine the forum of appeal and that the jurisdictional value will not vary. He relies on Gajja Singh v. Gurdial Singh (AIR 1960 Punj 467) (FB)and on the provisions of Section 11 of the Suits Valuation Act. Further, he contends that in view of the consistent practice that has been obtaining, the jurisdictional value in a pre-emption suit is governed by the rules framed under Section 3 of the Suits Valuation Act and that valuation will determine the forum of appeal also and that the value will not change.

5. Para 31 (a) of the Himachal Pradesh (Courts) Order 1948, reads as:--'Save as otherwise provided by any law for the time being in force, appeals from decrees of courts exercising original jurisdiction shall lie as follows:--

(a) from a decree of a Subordinate Judge in a suit of value not exceeding five thousand rupees, to the Court of the District Judge; and (b) xx xx xx

Thus it would be apparent that an appeal to the District Judge would lie incases where the value of the suit does notexceed five thousand rupees. In so faras para 32 is concerned the same relatesto second appeals from appellate decreesto the High Court. This para is not relevant in the present case.

6. Learned counsel for the appellant relied on two authorities of this Court. The first case is SA No 14 of 1968 decided on 20-12-1971 (Him Pra), titled Smt. Achhru v. Yoginder, etc. In this case the scope of paragraph 32 (1) (b) fell to be considered. It relates to second appeals in land suits and it says that an appeal shall lie to the High Court if the value of the suit is one thousand rupees or upwards, or the decree involves directly some claim to, or question respecting, property of like value. In this case a reference was made by S.N. Andley. J. to a larger Bench and this question was considered by M.H. Beg, C. J. and D.B. Lal. J. and it was held that the scope of the expression 'value' as in para 2 (vii) in relation to a suit means the amount or value of the subject-matter of the suit. This value is, of course, not a sentimental or subjective value. Presumably, it is the market value, in terms of money, of whatever is the subject-matter of the suit. It is significant that there is no reference here to the provisions of the Suits Valuation Act or to the Court-fees Act. Further, it was held that the Privy Council permitted proof of the real value of the subject-matter of the suit for the purposes of leave to appeal to the Privy Council notwithstanding the fact that, for the purposes of court fee, the value of the suit was less than the appealable amount. In other words, the regulating principles for the purposes of such appeals were not to be found in the Court-fees Act or the Suits Valuation Act. Thereafter this point again came up for consideration before another Bench of this Court in KishoriLal v. Ishwar Dass ILR (1973) Him 416. The Court was called upon to decide whether the value of the suit would be the value put in the plaint before the trial Court or whether that value would be enhanced by giving evidence by affidavit, etc. so as to bring it within the prescribed limit to maintain a second appeal before the High Court under para 32 (1) (b) (ii) of the Himachal Pradesh (Courts) Order. 1948 and the Bench held that the value of the suit could be determined afresh for the purpose of second appeal. These judgments which relate to the scope and interpretation of para 32 of the Himachal Pradesh (Courts) Order are not relevant for determination of the question in the instant case.

7. Under Section 3 of the Suits Valuation Act as amended in its application to Himachal Pradesh, the State Government is required to make rules for determining the value of land for purposes of jurisdiction in the suits mentioned in the Court-fees Act. Section 7, paragraphs V and Viand para X. Clause (d). Under Sub-section (2) the rules may determine the value of any class of land, or of any interest in land, in the whole or any part of a local area, and may prescribe different values for different places within the same local area. The Punjab Government has made rules under this section as are mentioned in Chapter 3-D. Volume I of the Punjab High Court Rules and Orders. These very rules have been made applicable as would be apparent from the judgment of the learned single Judge to Himachal Pradesh. Two successive notifications, one after the other have been issued by the Himachal Pradesh Government applying the rules of the Punjab High Court for the determination of value of land for purposes of jurisdiction in certain classes of suits. These rules are:--

1. In suits for the possession of land the value of the land, for purposes of jurisdiction, shall be held to be as follows:

(a) Where the land forms an entire estate, or a definite share of an estate paying annual revenue to Government or forms part of such an estate and the annual revenue payable for such part is recorded in the Collector's register and such revenue is permanently settled sixty times the revenue assessed on the land.

(b) Where the land forms an entire estate or a definite share of an estate paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid, and revenue is settled, but not permanently--thirty times the such revenue so payable.

(C) __ __ __ __(d) __ __ __ __ (E) __ __ __ __ 2. In suits to enforce a right of preemption in land, the value of the land,for the purpose of jurisdiction shall be calculated by the preceding rules. Therefore, from these rules which are made applicable to Himachal Pradesh it would follow that the jurisdictional value in a suit for pre-emption shall be determined or shall be computed in accordance with the aforesaid rules. This case is therefore covered by Rule (1) (b) read with Rule (2) of Chapter 3-D, Volume I of the Punjab High Court Rules and Orders. The subject-matter of a suit for pre-emption is the property sought to be pre-empted, and not the amount which has to be paid by the per-emptor. No doubt the decree imposes a condition on the decree-holder to make payment of the money before he is entitled to possession and that amount he has got to deposit in accordance with the directions of the Court within a particular time. The suit is for possession and not for payment of money by the plaintiff. The plaintiff has sued for possession and, therefore, the subject-matter of the suit is the property sought to be pre-empted and not the amount which is to be paid by the pre-emptor, no matter that there is a direction by the Court that he can get possession subject to the condition that he deposits the money within a particular time in the Court failing which his suit would stand dismissed.

8. Now I may notice other authorities relied upon by learned counsel for the appellant. In Muhammad Afzal Khan v. Nand Lal. (1908) Pun LR 436 (FB) it was held that a Court cannot grant a preemption decree for possession on payment of a sum of money which exceeds the pecuniary jurisdiction of its limit end that in such a case the Court should return the plaint for presentation to competent Court. But this authority was not followed by the Full Bench of the Punjab High Court in Gajja Singh (supra). In that case (supra) the Court held that the value of a pre-emption suit relating to land is fixed according to the provisions of the Suits Valuation Act, and the rules made thereunder fix its value once for all. This valuation computed on the basis of thirty times of land revenue is not subject to alteration subsequently. It is not tentative. There can be no doubt that the direction in the pre-emption suit, that the pre-emptor shall deposit the specified amount in Court within a specified time, is a part of the pre-emption decree but that amount does not affect the jurisdictional value of the suit nor does it affect the Court's power to incorporate this amount in the pre-emption decree, as the jurisdictional value of the suit is to be fixed in accordance with the amount or value of the subject-matter of the suit. The forum of appeal is determined by this value. It is open to the Legislature to fix this value at its market value orat any notional or artificial figure. When the Legislature fixes a jurisdictional value, then that value must regulate the forum of the suit and also the forum of the appeal or appeals and the Court of the lowest grade with jurisdiction of this value has jurisdiction to entertain and decide the same.

9. The further authority is Kiran Singh v. Chaman, Paswan (AIR 1954 SC 340). This authority has got no relevancy. It only says that a decree passed by a Court without jurisdiction is a nullity and its invalidity can be set up whenever and wherever it, is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings. Once it is held here that it is within the competence of the learned District Judge to entertain the appeal there is no question of the decree being a nullity.

10. Another case cited is Rachappa v. Shidappa (AIR 1918 PC 188). This authority also has got no relevancy. The further authority is Inayat Husain v. Bashir Ahmad (AIR 1932 All 413). In this case it had been held that the Suits Valuation Act and Court-fees Act are purely fiscal enactments and they have no bearing on the question as to which is the proper Court for the institution of the suit having regard to the value of property. The case is distinguishable because it was a suit for rendition of accounts

11. I am of the view that the learned single Judge is right in holding that the appeal fell within the competence of the learned District Judge.

12. The Second point is with regard to custom. It has been held by both the courts that the parties are governed by agricultural custom obtaining amongst the Sainis to which community the parties belong. Learned counsel has contended that the respondent had failed to prove what that custom was and therefore, it will be presumed that the parties are governed by the personal law. The learned counsel for the respondent has however not seriously pressed this contention.

13. Hence the appeal fails and is hereby dismissed with costs.


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