MOTILAL J BOAL Vs. U R RAMACHAR

JUDGEMENT

(1.) The plaintiff has brought a suit in the Court of the Subordinate Judge, Bangalore, in effect for a declaration that he is entitled to enforce against defendant 1 and defendant 2 (who is said to have purchased the property from defendant 1 'pendente lite' certain restrictive covenants fixed by the Bangalore City Municipality at the time of ' sale by them of the vacant sites in the area in question in Gandhlnagar as to leaving of certain open spaces in their own site between his own and the defendants' property as well as in front of their own building and the nature of the building to be constructed on their own site; and for a permanent injunction directing the defendants to remove certain structures which the latter had constructed on their own site as being contrary to or in breach of those restrictive covenants. The plaintiff valued the reliefs for purposes of jurisdiction and Court-fee at Rs. 3080 under Section 4(iv) (c) of the proviso to Mysore Court-fees Act. He valued at its market value the area of what he called 'the disputed area', that is the open spaces on which he objected to the defendants' building and paid courtfee on half the same. The defendants objected to this method of valuation and pleaded that the Court-fee paid was insufficient and that the subordinate Judge had no jurisdiction to try the suit. After hearing arguments the learned Subordinate Judge was of the view that "the ambit" of the plaintiff's prayer embraced the entire structure on the site belonging to the defendants and

(2.) It is contended by Mr. S. K. Venkataranga Iyengar, learned counsel for the petitioner, that the market value of the defendants' building is entirely irrelevant for the purpose of determining either the rights between the parties or the valuation for purposes of court-fee and jurisdiction; that the proviso to Section 4 (iv)(c) which lays down that in suits coming under Sub-clause (c), viz. to obtain a declaratory decree or order where consequential relief is claimed can only apply to cases where the relief sought is 'with reference to any immovable property' and that his suit is not with reference to any immovable property according to the construction placed on those words by certain decided cases to which he has referred. For this position he relics on a case reported in 'GURUNATHA CHETTIAR v. SECY. OF STATE', AIR 1936 Mad 201. where Varadacha-riar J. (as he then was) held that the 'prima facie' interpretation of the expression "relief sought is with reference to immoveable property" is that the dispute in some sense should relate to immoveable property. That learned Judge has In his judgment referred to the view of Jackson, J., in 'VENKITA KRISHNA FATHER', In re : 52 Mad L J 121 : AIR 1927 Mad 348, that the proviso should be read with the clause so as to make "with reference" to mean involving possession of land, houses or gardens.

(3.) The nest case cited for the petitioner is the one in In re : K. J. V. NAIDU', AIR 1946 Mac! 235, in which Somayya, J., referred to and relied on 'GURUNATHA CHETTIAR v. SECY. OF STATE', AIR 1936 Mad 201. That was a suit for a declaration that the plaintiffs had the customary and mamool rights, viz., to graze cattle and to take leaves and manure, to cut and take wood required for fuel and other building and domestic purpose etc., free of charge from a forest area belonging to another. It was held that it not being a suit relating to any title to immovable property, fell under Section 7, Clause (iv) (c) of the Courtfees Act and not under Section 73. Clause (iv) (c) which corresponds to Subclause (c) ot the same section. Somayya, J., then observed: