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Gauhati High Court · body

1970 DIGILAW 20 (GAU)

Shiogobinda Tribedi v. Surjyab Ali Tribedi

1970-03-07

R.S.BINDRA

body1970
The facts relevant to the revi­sion petition filed by the defendant Shiogobinda Tribedi under para 34 of the Tripura (Courts) Order, 1950, hereinafter called the order, can be set out in a few words. The plaintiff Surjyabali, the res­pondent No. 1, filed Title Suit No. 42 of 1966 against the present petitioner and the respondent No. 2 for declaration of his title in the land in dispute as a co-owner to the extent of one-third share and for possession by partition of the land re­presenting his share. He happened to fix the value of the suit for the purpose of jurisdiction at Rs. 600. Shiogobinda pleaded that the total value of the land r dispute was Rs. 20,000, that the jurisdictional value of the suit must correspond to the value of the entire land involved, and that in consequence the Munsiff at Dharmanagar, in whose Court the suit had been filed, had no jurisdiction in the matter since he could try suits only upto the value of Rs. 4000. 2. The Munsiff formulated the follow­ing preliminary issue respecting the con­troversy just stated: "Is the suit properly valued t&d has this Court pecuniary jurisdiction to try this suit?" The Munsiff appointed two Commissioners and the parties examined a large number of witnesses and relied upon certain documents in support of their contentions relevant to the preliminary issue order dated 14-12-1967, the Munsiff held that the total value of the land in suit plus the buildings standing on it is Rupees 6000, that in consequence the value of the suit comes to Rs. 2000, representing one-third share of the plaintiff in the property, and that as such he had jurisdic­tion to try the suit Aggrieved by that order of the Munsiff, the defendant Shiogobinda has come up in revision to this Court. 3. Shri A. M. Lodh, appearing for the plaintiff-respondent, raised the preliminary objection, at the very outset of the hear­ing, that the revision petition is not com­petent. I have found this objection to be without merit. 3. Shri A. M. Lodh, appearing for the plaintiff-respondent, raised the preliminary objection, at the very outset of the hear­ing, that the revision petition is not com­petent. I have found this objection to be without merit. Clause (I) of para 34 of the order provides inter alia that the Court of the Judicial Commissioner may call for the record of any case which ,has been decided by a Civil Court subordinate to it and in which no appeal lies to it, if on an application made to it the Court of the Judicial Commissioner is of the opinion that there is an important question of law or custom involved and such question re­quires further consideration. Shri R. Ghosh contended for the petitioner that the instant revision petition raises an im­portant question of law relating to the determination of the jurisdictional value of a suit filed by a co-owner for declara­tion of his title to the property jointly owned and for possession by partition of his share, and that such question requires consideration at the hands of this Court for the double reason that there is no pronouncement of this Court on the matter and that there is conflict of opinion be­tween the other High Courts in India thereon. Shri A. M. Lodh was not in a po­sition to cite any pronouncement of this Court covering the point in issue, nor could he deny that there is judicial diver­gence between the other High Courts on that point. Hence, I hold that the revi­sion is clearly maintainable as it raises a question which falls within the ambit of Para 34(1) of the Order. 4. The same conclusion can be reached on the basis of sub-clause (a) of Cl. (I) of Para 34. That sub-clause is to the effect that the Court of Judicial Commissioner can interfere in revision if the Civil Court, by which the cause was decided, appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction with material irregularity. Since the total value of the property in dispute was ad­judged at Rs. 6000/- by the Munsiff, and since his jurisdiction is confined to suits of the value of Rs. Since the total value of the property in dispute was ad­judged at Rs. 6000/- by the Munsiff, and since his jurisdiction is confined to suits of the value of Rs. 4000/-, if this Court accepts the contention of Shri Ghosh, namely, that in the suits of present nature the jurisdictional value would be the value of the entire property involved and not of the value of the share of the plain­tiff therein, the question of jurisdiction would surely be involved. The provi­sions of sub-clause (a) of Cl. (1) of Para 34 of the Order are almost identical with the provisions of Section 115 of the Civil Procedure Code. The only difference Is that whereas in Cl. (c) of Section 115 the two expressions "material irregularity" and "illegality" are used, in sub-clause (a) of Para 34(1) the second expression is con­spicuous by its omission. However, that difference Has no relevancy to the point that arises for determination in the pre­sent petition for revision. It was held in the case of Indrajit v, Bhaja, AIR 1969 Orissa 257, that if a civil revision filed by the defendant involves a question of jurisdiction, e.g., where the suit had been undervalued and on proper valuation being determined the lower Court, viz., Munsiff, would not have the pecuniary jurisdiction and the suit would be triable by the Subordinate Judge, it is open to the High Court to interfere in revision. Exactly similar is the conten­tion raised before me on behalf of the defendant-petitioner. Therefore, I hold that the revision petition is competent. 5. Though it is mentioned in the peti­tion that the Munsiff had gone wrong in assessing the value of the property in dis­pute at Rs. 6000/- as against the value of Rs. 20,000 placed on it by the defendant-petitioner, Shri Ghosh did not press this point at the hearing. He very fairly con­ceded that the valuation fixed by the trial Court on the basis of evidence led before it could not legitimately be challenged in the revision petition. Therefore, I am left to determine only one question namely, whether the jurisdictional value of the suit filed by the respondent No. 1 shall be fixed on the basis of the value of his share in the property in dispute or on the basis of the value of the whole of the property. Shri Ghosh could cite only one authority in support of his contention. Shri Ghosh could cite only one authority in support of his contention. It is re­ported in AIR 1925 Cal 320, Rajani Kanta v. Raja Bala Dasi. In the opinion of the Calcutta High Court, it is the entire value of the property in dispute and not the share of the plaintiff in that property which would go to determine the juris­dictional value of the suit. However, Shri Ghosh conceded that the rest of the High Courts in India are unanimous on the point that the jurisdictional value of parti­tion suits represents the value of the plaintiff's share in the property in dispute and not the value of the property as a whole. Shri A. M. Lodh cited the latest case on the point in issue which is report­ed in AIR 1953 Pat 342 , Bhairab Chandra v. Sat Narain. The Patna High Court held, dissenting from the view expressed by the Calcutta High Court in the case of Rajani Kanta, AIR 1925 Cal 320 (supra), that the value of a suit for partition for the purpose of jurisdiction is the value of the share claimed by the plaintiff and not the value of the whole property of which partition Is sought. The High Court relied upon a decision of the Privy Council in the case of Shevantibai v. Janardhan, AIR 1944 PC 65, in support of its conclusion. The ob­servations made by the Privy Council in that case relate actually to the interpretation of Section 110 of the Civil Pro­cedure Code. However, the facts of that case do bear analogy to the point which was debated before the Patna High Court The plaintiff of the case before the Privy Council was an assignee of the purchaser from a member of a joint Hindu family of one-sixth share in the joint family property, and he sued for partition of the family property and to have his one-sixth share allotted to him. The value of the interest which the plaintiff claimed was much below Rs. 10,000 though the total value of the joint family property ex­ceeded that figure. When the plaintiff moved an application before the High Court for leave to appeal to His Majesty in Council his application was turned down on the ground that the value of his share in the property being less than Rs. 10,000 though the total value of the joint family property ex­ceeded that figure. When the plaintiff moved an application before the High Court for leave to appeal to His Majesty in Council his application was turned down on the ground that the value of his share in the property being less than Rs. 10,000, the subject-matter of the appeal was below the minimum value prescrib­ed by Section 110, Civil P. C, This finding of the High Court was challenged before the Privy Council but without success. The Privy Council held that the conclusion of the High Court that the subject-matter in dispute on ap­peal to His Majesty in Council must be taken to be the value of the share of the joint Family property in respect of which the plaintiff was claiming was unassail­able. The Privy Council observed fur­ther that the question as to the title of the plaintiff to the share which he claim­ed in the joint property did not become a question respecting the whole of the joint family estate merely because if his title was established it would result in the joint family estate being partitioned. I am in agreement with the Patna High Court that these observations of the Privy Council are quite relevant to the decision of the point involved in the present revi­sion petition. 6. Allahabad High Court held In the case of Mohd. Mushtaq v. Bagridan, AIR 1952 All 413 , that a suit for partition of the plaintiff's share must be valued for purpose of jurisdiction under Section 4 of the Suits Valuation Act according t» the value of the share of the plaintiff and not of the whole of the property involved. 7. It would follow from the above dis­cussion of the various authorities that the preponderance of judicial authority is against the view taken by Calcutta High Court. On principle, it looks obvious that the subject-matter of the dispute in a suit for declaration of title of the plaintiff's share hi the common property and posses­sion of that share by partition is that share and not the whole property. Hence, the proposition canvassed by Shri Ghosh cannot be sustained either on authority or on principle. 8. In the result, the revision petition fails and so is dismissed. Hence, the proposition canvassed by Shri Ghosh cannot be sustained either on authority or on principle. 8. In the result, the revision petition fails and so is dismissed. Since the point involved was purely legal and not covered by any authority of this Court, I leave the parties to bear their own costs. Revision dismissed.