ABDUL GHANI Vs. VISHUNATH

JUDGEMENT

(1.) The opposite party filed a suit against the applicant for possession of a piece of land after demolition of a construction made thereon by the applicant. For purposes of jurisdiction and also of court-fee he valued the land only according to its market price; he did not include the value of the construction standing upon it. An objection was raised by the applicant against the valuation and the court-fee paid on the plaint. The Munsif held that the correct value of the land was Rs. 1694/- and ordered the opposite party to increase the valuation to Rs. 1694/- and pay additional court-fee thereon. He assessed the value of the construction at Rs. 4623/- but was of the opinion that it was not to be taken into consideration in deciding the valuation of the suit for purposes of jurisdiction and court-fee. Against his decision the applicant has come up in revision.

(2.) There is a preliminary objection on the ground that the revision is not maintainable because the learned Munsif's deciding that the valuation of the land is Rs. 1694/- and that court-fee should be paid on that amount does not amount to his deciding a case within the meaning of Section 115, C. P C. The opposite party relies upon Buddhoo Lal v. Mewa Ram, ILR 43 All 564: (AIR 1921 All 1 (FB) ) (A) which has been confirmed in Ram Richpal v. Daya Nand Sarup, 1955 All LJ 167: ( (S) AIR 1955 All 309 (FB) ) (B). The question what was the valuation of the property in suit and what was the court-fee payable on the valuation was a question that arose in the suit itself and was not a separate case. Any decision given on the question could not be said to be deciding a case separately from the suit itself and therefore would not be liable to be revised under Section 115. On behalf of the applicant reliance was placed on Mt. Mohri Kunwar v. Keshri Chandra, 1941 All LJ 376: (AIR 1941 All 298) (C) and Hafiz Mohd. Ishaq v. Chief Inspector of Stamps, U. P., 1947 All LJ 99: (AIR 1947 All 340) (D). The observation in the first case at p. 381 (of All LJ) : (at p. 300 of AIR) to the effect that deciding a question of court-fee is deciding a case within the meaning of Section 115, C. P. C. was an obiter. The facts in 1947 All LJ 99: (AIR 1947 All 340) (D) were different; there the question of court-fee was raised not by the defendant, a party to the suit, but by a third person who was not a party to the suit, namely, a Stamp Inspector. When such a question was raised by a third person who was not a party to the suit, it could be contended that deciding it was deciding a case and not deciding any matter in the suit itself. It could not be said to be deciding a matter in the suit because the Stamp Inspector, was not a party to the suit: if he could raise a question he could do so only by means of a case separately from the suit. We agree with Shri Bannerji, counsel for the opposite party, that this revision application is not maintainable.

(3.) Even on merits the application is bound to fail. The opposite party sues for possession over the land only; he does not want possession over the construction standing on it. As a matter of fact he wants the construction to be demolished. It is open to the applicant to remove it himself before the suit is decreed or even before the possession over the land is delivered to the opposite party in execution of the decree. So long as the applicant is not prevented from removing it, if he so desires, it cannot be said that it is included within the scope of the suit and that its price should be added to the price of the land to arrive at the valuation for purposes of jurisdiction and court-fee. The opposite party does not claim possession over the construction; he claims possession over the land only. If something is permanently fixed to the land and when possession is delivered over the land the fixture also goes with it, it is immaterial for purposes of jurisdiction and court-fee; the opposite party cannot be required to add its value to the value of the land. It was not necessary for it to seek demolition of the construction at all; it might have as well claimed relief of possession over the land saying that the applicant was at liberty to remove the construction before the possession was delivered to it, in which case no question of taking into consideration the price of the construction could have arisen.