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2011 DIGILAW 1551 (PAT)

Subhas Prasad Singh v. Jogendra Kumar

2011-07-26

V.NATH

body2011
Order Heard the learned counsel appearing on behalf of the petitioner and the learned counsel appearing on behalf of the opposite party 2nd set. 2. This revision application has been filed against the order dated 2.8.2006 passed by the District Judge, Nalanda, in Title Appeal. No. 20 of 2006 by which the learned court has returned the memo of appeal to be presented before the Hon'ble Court after hearing the parties on the issue of valuation and recording the finding that the appeal ought to have been valued at Rs. 2,29,600/-. 3. The plaintiff-petitioner had filed Title Suit No. 102 of 1998 before the Court of Subordinate Judge-II, Hilsa, for partition of his share in the properties mentioned in the Schedule of the plaint. It is not disputed that the valuation of the said suit had been given at Rs. 2,29,600/- by the plaintiff and as the relief was for partition and so the fixed court fee was paid. After hearing the parties, the learned Subordinate Judge-II, Hilsa, decreed the suit in part with the finding that the plaintiff was entitled to his 1/3rd share only in the properties, mentioned in Schedules-2 and 2(K) of the plaint. Thereafter, the plaintiff preferred TA No. 20 of 2006 before the District Judge, Nalanda against the aforesaid judgment and decree. However, the plaintiff-appellant valued the appeal at Rs.41,234/- and paid fixed court fee in view of the nature of the relief. 4. An objection was raised regarding the maintainability of the appeal before the Court of District Judge, Nalanda, on the ground that the suit had been valued at Rs. 2,29,600/- and therefore the valuation of the appeal at Rs. 41,234/- was wrong. Contesting this objection it was submitted on behalf of the appellant that in view of the fact that the appellant had been granted partial relief by the court below, this appeal was confined only to that part of the property for which he had not been granted the relief as prayed in the suit. The appellant also relied upon a decision of this Court in order to persuade the learned appellate court below regarding the correctness of the valuation of his appeal and its maintainability in that court. However, the learned court below came to the finding that when the suit had been valued at Rs. 2,29,600/-, this al=peal ought to have been valued at Rs. However, the learned court below came to the finding that when the suit had been valued at Rs. 2,29,600/-, this al=peal ought to have been valued at Rs. 2,29,600/- and not at Rs. 41,234/- as has been done and after this finding the learned court below held by the impugned order that the appeal was not maintainable and directed the memo of appeal to be returned to the appellant to be presented before this Court. 5. The learned counsel appearing on behalf of the petitioner and the learned counsel appearing on behalf of 'he opposite parties have been heard in detail. The learned counsel for the petitioner submitted that the entire judgment and decree passed by the learned court below had not been challenged in this appeal which, in fact, had been confined to the part of the judgment and decree refusing the relief to the appellant and therefore the appellant had proportionately valued the appeal in accordance with the valuation of the property for which the relief has been claimed in the appeal and as such the appeal was maintainable before the Court of the District Judge. 6. The learned counsel for the opposite parties contested the submissions made on behalf of the petitioner. 7. The law is well-settled that the forum of appeal is determined by the valuation of the suit. For the purpose of court fee the valuation of the appeal may be different, but so far as valuation for the purpose of jurisdiction is concerned, it is the valuation given in the suit which is the determining factor. The learned appellate court below has rightly held that the result of the suit is immaterial for ascertaining the forum for appeal. I do not find any illegality or jurisdictional error in the impugned order. 8. This revision application is, accordingly, dismissed.