ZENAB BI Vs. WAJAHAT HUSEN KARAMAT HUSSAIN

JUDGEMENT

(1.) THE appellant instituted a suit against the respondent for getting possession of 4/5th share of a house situated in Khakrobpura, Bhopal, alleging that she had purchased the house by a registered sale-deed dated 17-4-1926 and was the exclusive owner of the same; that her husband died on 15-11-1948; that on the death of her husband the defendant-respondent came to pay a condolence visit to her; and that he continued to stay in the house and gradually took illegal possession of a portion of the house which, according to her, was to the extent of 4/5th of the house. The plaintiff proceeded to allege that the defendant refused to give up possession of the house and that his possession was that of a trespasser. The suit was instituted in the court of Munsiff. Bhopal, whose pecuniary jurisdiction was limited to Rs. 1000/ -. The plaintiff valued the portion of the house that was in the occupation of the defendant at Rs. 800/- and accordingly paid ad valorem court-fee on the plaint.

(2.) THE defendant resisted the suit contending that he inherited the house from his father and that the plaintiff was the widow of his grandfather and was entitled to only one-eighth share in the house. We also raised the objection that the suit was not properly called lor purposes of court-fee and jurisdiction.

(3.) THE trial court found that the plaintiff was the sole and exclusive owner of the house and the defendant's possession of a portion of the house was that of a trespasser. Accordingly, the plaintiff's claim for possession of 4/5th share of the house in the defendant's occupation was decreed. The learned Munsiff also held that the valuation put by the plaintiff on the portion of the house in the defendant's occupation was correct and that the suit had been properly valued for purposes of court-fees. The defendant then appealed to the court of the district judge of Bhopal The learned additional district judge of Bhopal, who heard the appeal, without expressing any opinion on the merits of the plaintiff's claim, reversed the decision of the trial court and remanded the suit for trial of the question of the valuation of tho suit for purposes of court-fees and jurisdiction and for an enquiry into the description and specification of the property of which the plaintiff sought possession. The learned additional district judge took the view that under Order 20 Rule 9 C. P. C. , it was necessary for the plaintiff to give in the plaint a description of the property which was sufficient to identify the same and that in the absence of such specification and description of the portion of the house which was said to be in the possession of the defendant, the decree passed by the learned Munsiff was incapable of execution; and that the court-fee paid by the plaintiff valuing her claim at Rs. 800/- seemed to be insufficient as her suit being against the trespasser, she was liable to pay court-fee on the market value of the portion of the house which was said to be in the possession of the defendant and that if the market value of this portion exceeded Rs. 1000/- the learned Munsiff would not have any jurisdiction to try the suit. The learned Additional District Judge observed that according to the evidence on record it appeared that the market value of the house in question was in the neighbourhood of Rs. 15000/- and that on this basis proper court-fee had not at all been paid on the plaint.