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2004 DIGILAW 469 (GAU)

Rabia Khatun v. Moinuddin Ahmed

2004-08-12

B.BISWAS

body2004
JUDGMENT D. Biswas, J. 1. This appeal is directed against the judgment and decree dated 21.3.1995 passed by the learned Assistant District Judge, Cachar, Silchar in Title Appeal No. 22 of 1992 setting aside the judgment and decree dated 17.6.1992 passed by the Learned Sadar Munsiff No. 4, Silchar in Title Suit No. 16 of 1974. 2. The suit was filed for partition and recovery of possession by evicting the defendant-respondents herein. The learned Sadar Munsiff No. 4, Silchar decreed the suit for partition as the title of the appellants were already adjudged in earlier litigation and finally in Second Appeal No. 132 of 1969. As submitted by the learned counsel at the Bar, there is no dispute that the appellants (plaintiffs) have title over the suit land sought to be partitioned. 3. The learned First Appellate Court set aside the aforesaid judgment on the question of jurisdiction. The learned First Appellate Court held that the suit land has been undervalued and that the suit for partition was not maintainable since the plaintiff-appellants did not approach the Collector for partition at the first instance. 4. This Court while admitting the appeal observed that ground Nos. 1, 2 and 8 will be the substantial question of law. The aforesaid grounds are as follows :- "(1) For that the learned Appellate Court committed an error on a substantial question of law in reversing the finding of trial Court and dismissing the Suit on Technical grounds without considering the effect of Sections 21, 99 of Civil Procedure Code and Section 11 of Suit Valuation Act which resulted in failure of Justice. (2) For that the learned Court of Appeal committed an error on a substantial question of law inasmuch as assuming that the Trial Court has no pecuniary jurisdiction, the learned trial Court tried the suit on merit and it should not be reversed or disturbed as the judgment is not effected by over valuation or Under Valuation and there is no failure of Justice. (8) For that the learned Court of Appeal went wrong in reversing the finding of the learned trial Court that "When the Suit attracts Section 7(iv) of the Court fee Act, the valuation as put by the plaintiff is normally to be accepted" and this is also admitted by the defendants Advocate." 5. Ground No. 1 relates to the power of the Appellate Court or Revisional Court. Ground No. 1 relates to the power of the Appellate Court or Revisional Court. Ground No. 2 relates to pecuniary jurisdiction of the Court and Ground No. 8 relates to the valuation of the suit. 6. Sub-section (2) of Section 21 of the Code of Civil Procedure provides for objection to jurisdiction. It says that no objection as to pecuniary limits of jurisdiction shall be allowed by the Appellate Court or Revisional Court unless such objection was taken in the Court of first instance. 7. Additional Issue No. 2 relates to the question of jurisdiction. Issue No. 4 relates to the question of valuation. The learned trial Court dealt with the questions of valuation vis-a-vis jurisdiction and came to the conclusion that the value of the suit land is not more than Rs. 10,000. The learned trial Court refused to act upon a certified copy of the Sale Deed dated 29.11.1985. Reversing this finding, the learned First Appellate Court allowed the appeal and dismissed the suit for partition. The learned Appellate Court did not discuss any other issue except the issues relating to valuation and jurisdiction. 8. The learned First Appellate Court apparently omitted to discuss other important issues and thus violated the provisions of Order 41, Rule 31 of the Code of Civil Procedure. The learned First Appellate Court also totally ignored that it was a partition suit and there was no dispute with regard to the title of the appellants (plaintiffs) over the suit land. 9. The Hon'ble Supreme Court in Kiran Singh and Ors., Appellants v. Chaman Paswan and Ors., Respondents AIR 1945 SC 340 (para 7) observed as follows :- "7. Section 11 enacts that notwithstanding anything in Section 578 of the Code of Civil Procedure an objection that a Court which had no jurisdiction over a suit or appeal had exercised it by reason of over-valuation or under-valuation, should not be entertained by an appellate Court, except as provided in the section. Then follow provisions as to when the objections could be entertained, and how they are to be dealt with. The drafting of the section has come in and deservedly for considerable criticism, but amidst must that it obscure and confused, there is one principle which stands out clear and conspicuous. Then follow provisions as to when the objections could be entertained, and how they are to be dealt with. The drafting of the section has come in and deservedly for considerable criticism, but amidst must that it obscure and confused, there is one principle which stands out clear and conspicuous. It is that a decree passed by a Court, which could have had no jurisdiction to hear a suit or appeal but for over-valuation or under-valuation, is not to be treated as, what it would be but for the section, null and void, and that an objection to jurisdiction based on over-valuation or under-valuation, should be dealt with under that action and not otherwise. The reference to Section 578, now Section 99 C.P.C., in the opening words of the section is significant. That section, while providing that no decree shall be reversed or varied in appeal on account of the defects mentioned therein when they do not affect the merits of the case, excepts from its operation defects of jurisdiction. Section 99 therefore gives no protection to decrees passed on merits, when the Court which passed them lacked jurisdiction as a result of over-valuation or under-valuation. It is with a view to avoid this result that Section 11 was enacted. It provides that objections to the jurisdiction of a Court based on over-valuation or undervaluation shall not be entertained by an appellate Court except in the manner and to the extent mentioned in the section. It is a self-contained provision complete in itself, and no objection to jurisdiction based on over-valuation or under-valuation can be raised otherwise than in accordance with it. With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99, C.P.C. and Section 11of the Suit Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act." 10. First let us deal with the valuation. It appears that initially the suit was filed for partition of a plot of land measuring 16 Kathas valued at Rs. 1000. Later on, by way of amendment, another plot of land measuring 5 Bighas and odd land was brought in as subject-matter of the litigation. Mr. Singh, learned counsel for the respondents argued that there has been no corresponding increase of valuation of the suit land after addition of additional plot of land measuring 5 bighas. Shri Singh pointed out that the learned First Appellate Court held that the value of the land would be more than Rs. 1 lakh. 11. It appears that the 16 Kathas of land was initially the subject matter of the suit and it was valued at Rs. 1000. No evidence was adduced by the respondents (defendants) to show that the value was more than Rs. 1000. The lone sale deed, referred to above, was also not tendered in evidence. Therefore, going by the initial valuation given by the appellants (plaintiffs) for 16 Kathas and odd land, the value of the suit land after insertion of 5 Bighas and odd lands would definitely increase, but will not exceed Rs. 10,000. Therefore, it was wrong on the part of the learned First Appellate Court to conclude that the value of the land would be more than Rs. 1 lakh based on surmises and conjectures. 12. 10,000. Therefore, it was wrong on the part of the learned First Appellate Court to conclude that the value of the land would be more than Rs. 1 lakh based on surmises and conjectures. 12. The provisions of Section 7(iv) of the Court Fees Act, 1870 would apply for the purpose of valuation of a partition suit. The plaintiff is at liberty to state the amount for which he values the relief sought. This is the position of law. This Court in para-6 of the judgment in Rakesh Chandra Das and Ors., Petitioners v. Khan Bahadur Abdul Majid Choudhury and Ors., opposite parties held as follows :- "6. From the above it appears that in suit for partition, Court fee has to be determined as per the share claimed by the plaintiff and not qua the entire property in question. This apart, when the suit attracts Section 7(iv) of the Court Fees Act the valuation as put by the plaintiff is normally to be accepted. Even if the same be somewhat arbitrary, the Court has no jurisdiction to interfere with the same as held by the Division Bench of this Court in the case referred above." 13. In Maheshpur Tea Industries Pvt. Ltd., Appellant v. Mantala Tea Co. Ltd and Ors., Respondents (2001) 1 GLT 141, in para 17, learned Single Judge of this Court held that even where an objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction was taken in the Court of first instance at the earliest possible opportunity at or before settlement of issues, the appellate Court would not allow such objection unless there has been a failure of justice. In view of the decisions above, this Court is not inclined to interfere with the valuation given by the plaintiff-appellants. 14. The last leg of argument of Mr. Singh was that the plaintiff-appellants ought to have approached the Collector at the first instance for partition. According to Mr. Singh, the Civil Court assumes jurisdiction as and when Collector refuses to effect partition. Obviously, there has been omission in this regard on the part of the plaintiff-appellants. The suit was filed in 1974 for partition. The title of the plaintiffs is not in dispute. No specific issue was framed by the learned Trial Judge. The written statement is also silent on this. Obviously, there has been omission in this regard on the part of the plaintiff-appellants. The suit was filed in 1974 for partition. The title of the plaintiffs is not in dispute. No specific issue was framed by the learned Trial Judge. The written statement is also silent on this. Hence, it would be unjust to refuse partition after so many years particularly when the title of the plaintiff-appellant is not in dispute. 13. In the result, the second appeal is allowed. The judgment and decree dated 21.3.1995 passed by the learned Assistant District Judge, Cachar, Silchar in Title Appeal No. of 1992 are hereby set aside and the judgment and decree dated 17.6.1992 passed by the Learned Sadar Munsiff No. 4, Silchar in Title Suit No. 16 of 1974 are hereby affirmed. No costs.