KHIMJI JIVA Vs. NARENDRAKUMAR MAGANLAL SHAH

JUDGEMENT

(1.) The plaintiffs filed the present suit in the Court of the Civil Judge Senior Division at Rajkot for a declaration that the agreement of sale executed by the defendant No. 3 in favour of the defendants Nos. 1 and 2 was not binding upon the plaintiffs and that the consent decree passed in Special Civil Suit No. 5 of 1966 between the defendants Nos. 1 and 2 on one hand and the defendant No. 3 on the other hand was also not binding on them.

(2.) The defendants filed their written statement and contested the suit. The defendants Nos. 1 and 2 thereafter made application Ex. 22 for raising and deciding a preliminary issue as to the Court-fees and jurisdiction of the Court. The plaintiffs resisted that application.

(3.) The learned Trial Judge after hearing both the parties decided that application and held that the preliminary issue which the defendants Nos. 1 and 2 had sought should be raised. However what he in fact did was not to raise the issue in the form in which issues are raised but having held that the aforesaid preliminary issue be raised he heard the parties on merits of that issue and straightaway recorded his finding in the order below Ex. 22. The learned Trial Judge by his said order did not direct the plaintiffs to pay any additional Court-fees but held that the claim in suit ought to have been valued at Rs. 12000.00which according to the learned Trial Judge represented 4/5th share of the four plaintiffs in the property in question-only 1/5th going to the defendant No. 3 who is the father of the three plaintiffs and husband of the defendant No. 4. It was the defendant No. 3 who had executed the agreement of sale in respect of the property in question in favour of the defendants Nos. 1 and 2 and against whom the aforesaid consent decree for specific performance of the contract was passed in Special Civil Suit No. 5 of 1966 in respect of which the plaintiffs have sought a declaration that it is not binding upon them. Having recorded the aforesaid finding the learned Judge made the follow-ing operative order: