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1978 DIGILAW 732 (MP)

Munnalal v. Badrilal

1978-09-27

G.G.SOHANI

body1978
Short Note : The material facts giving rise to this revision petition briefly are as follows: The plaintiff-applicant has instituted a suit, for declaration of his title to the suit land and for a declaration that defendant No.1 was not entitled to one-third or any other share in the suit land. The plaintiff's case was that the suit land had been bequeathed to him by one Durgibai and that he was in possession of the suit land since then. The plaintiff also averred that a decree was obtained by defendant No. 1, the son of Durgibai, against defendants Nos. 2 and 3 for possession of one-third portion of the suit land. It was further averred that the said decree was not binding on the plaintiff and the plaintiff was, therefore, entitled to remain is possession of the suit land. The suit was valued for purposes of jurisdiction at Rs. 9000, and in respect of the relief for declaration the plaintiff paid fixed Court fees under Art.17(iii) of Schedule II of the Court Fees Act, 1870. The suit was resisted by the defendants inter alia on the ground that the Court-fees paid was not proper. The trial Court, by its impugned order, held that the plaintiff should pay ad valoram Court-fees on Rs. 9,000, which was the market value of the property in dispute. Aggrieved by that order, the plaintiff has preferred this revision petition. Held : Learned counsel for the petitioner relied upon a decision of this Court in Santoshchandra v. Gyansunderbai, 1970 JLJ 290 and contended that the plaintiff claimed title to the suit property in his own right and he was entitled to the relief of declaration simpliciter. The contention must be upheld. The plaintiff has no doubt referred to a decree passed in favour of defendant No.1, but he was admittedly not a party to that decree, nor could he be held to be, in view of the allegations in the plaint, a representative in interest of the person bound by that decree. In these circumstances, the trial Court erred in holding that the plaintiff was required to pay ad voloram Court-fees on Rs. 9000/-. Revision allowed.