Research › Browse › Judgment

Patna High Court · body

1952 DIGILAW 21 (PAT)

Kandhai Mahton v. Prasad Mahton

1952-01-29

B.P.JAMUAR, RAI

body1952
Judgment Rai, J. 1. This appeal by the plaintiffs is directed against the order of the Court of appeal below returning the memorandum of appeal filed before that Court to be presented before a proper Court. 2. The plaintiffs had filed a suit in the Court of the Additional Subordinate Judge, 2nd Court, Patna, for partition of their one-fourth share in the properties in suit. The suit was valued for purposes of jurisdiction at Rs. 7,929/12/- as appears from paragraph 11 of the plaint which is as follows: "That the property in suit is valued at Rs. 7,929/12/- for purposes of jurisdiction; but as the claim is for partition, a fixed court-fee of Rs. 20/10.00 is paid." It appears that, at the time of hearing of the partition suit, an objection was raised on behalf of the defendant No. 1 that, as the plaintiffs had failed to prove their possession over the properties in suit, it was bound to fail until the plaintiffs had paid ad valorem court-fee on their one-fourth share in the properties. Arguments were concluded on the 21st of February 1950, and the suit was postponed to the 1st of March 1950, for judgment. On the 22nd of February 1950, the plaintiffs filed a petition stating that they were prepared to pay ad valorem court-fee over one-fourth share of the properties in dispute, if the Court be of opinion that they were not in possession of the same. The trial Court thereupon passed the following order : "I think the plaintiff has paid insufficient court-fees in this case. He is directed to pay ad valorem court-fees on a sum of Rs. 1,982/7/- by 8-3-1950. Inform. The judgment will be delivered on that date after the above court-fee is paid." Thereafter, the plaintiffs paid the deficit court-fee. On the 10th of March 1950, judgment was delivered, and the suit was dismissed. Thereafter, the plaintiffs filed an appeal before the District Judge of Patna who was of opinion that the appeal should have been presented before the High Court, and not before him, on the ground that the valuation of Rs. 7,929/12/- given in the plaint for purposes of jurisdiction would be the basis for determining the forum of appeal. 3. The learned Advocate for the appellants contended that the order of the Court of Appeal below was erroneous. 7,929/12/- given in the plaint for purposes of jurisdiction would be the basis for determining the forum of appeal. 3. The learned Advocate for the appellants contended that the order of the Court of Appeal below was erroneous. In support or his contention, he relied on the cases of DUKHI SINGH V/s. HARIHAR SHAH, 5 Pat L J 540 and SHEVANTIBAI V/s. JANARDHAN RAGHUNATH, 71 Ind App 142 (PC). Both these cases, in my opinion, are distinguishable. In 5 Pat L J 540, the plaintiff had valued the suit for purposes of jurisdiction at Rs. 1,915/6/2 representing the value of his own shar in the properties in suit. The trial Court had fixed the valuation of the suit for purposes of court-fee and jurisdiction at Rs. 1,700.00 which was one-thirteenth of the value of the entire properties which were the subject-matter of the suit. The trial Court had in that suit issued a temporary injunction against the defendant No. 1 of that suit restraining him from proceeding with the execution of the decree challenged in that suit. Defendant No. 1 had filed a miscellaneous appeal before the High Court against that order. A preliminary objection was raised by the plaintiff-respondent that a miscellaneous appeal should have been filed before the lower Court and not before the High Court. The objection was upheld mainly on the ground that the order of the trial Court fixing the value of that suit for purposes of jurisdiction, which had not been challenged and had become final, would determine the forum of appeal. 4. The objection was upheld mainly on the ground that the order of the trial Court fixing the value of that suit for purposes of jurisdiction, which had not been challenged and had become final, would determine the forum of appeal. 4. The case of DUKHI SINGH V/s. HARIHAR SHAH, 5 Pat L J 540, was considered and distinguished in a later decision of this Court in the case Of "RANJIT SAHI V/s. MUHAMMAD QASIM, 2 Pat 432, where Kulwaat Sahay, J., with whom Das, J., agreed, held: "No doubt in considering the question as to whether the appeal in the case lay to the High Court or to the District Court, their Lordships considered the broad question as to the value of suits in partition cases, but to my mind there is a distinction between suits for partition pure & simple, where the plaintiff is in joint possession of his share and there is no dispute as to his title or share, and suits where the plaintiff seeks for an adjudication of his title or extent of share and for partition after such adjudication. In the latter case, it is the value of the plaintiffs share which will determine the jurisdiction of the Court and not the value of the entire property. 5. In the case of BAI SHEVANTIBAI, 71 Ind App 142 P C, their Lordships of the Judicial Committee were of opinion that, where the appellants claim for partition of joint family property had been dismissed by the Courts below on the ground of limitation, "the value of the subject-matter in dispute on appeal to His Majesty in Council" for the purposes of Sec.110 of the Code of Civil Procedure was the value of the share of the joint family property in respect of which the appellants claim had been dismissed. 6. In the present case, however, on the valuation fur purposes of jurisdiction given in the plaint and the decree of the trial Court, the Court of appeal below was entitled to return the memorandum of appeal to be presented before a proper Court. 7. 6. In the present case, however, on the valuation fur purposes of jurisdiction given in the plaint and the decree of the trial Court, the Court of appeal below was entitled to return the memorandum of appeal to be presented before a proper Court. 7. The learned Advocate for the respondents raised an objection that no appeal lies to this Court against the order of the Court of appeal be low returning a memorandum of appeal to be presented to the proper Court, In support of his contention he relied on the cases of RAGHUNATH CHARAN SINGH V/s. SHAMA KOERI, 31 Cal 344 & GORDHAN LALJI V/s. MAKSUDAN BALLAB, 40 All 648. In my opinion the objection raised on behalf of the respondents appears to be well-founded. But, as I have held above that the order passed by the Court of appeal below is not crroneous, it is not necessary for me to dispose of this appeal on this objection alone. 8. The result is that the appeal fails, and is dismissed; but, in the circumstances of this case, there will be no order for costs. Jamuar, J. 9 I agree.