FIRM RAMDHONEDAS BULAKIDAS Vs. ORAMBABALA DASSI

JUDGEMENT

(1.) This is an appeal by the plaintiff against a judgment and order passed by Sri J. M. Bir, learned Subordinate Judge, Burdwan, dated 24-2-1951, directing a plaint to be returned for presentation to the Court of the Munsif.

(2.) The plaintiff came to Court on the following allegations : That on 29-6-1946, the plaintiff obtained a decree for a sum of Rs. 2298-5-9 pies against a firm styled Nootbehari Das Eyomkesh Das in O. C. Suit No. 1743 of 1945 on the Original Side of this Court; that on 28-7-1948, Byomkesh Das granted a registered mokarari lease in favour of Orambabala who is a daughter of Byomkesh's father by his first wife; that on 29-7-1948, the decree obtained by the plaintiff was transferred for execution to the Court of the 2nd Munsif at Burdwan where it was registered as Money Ex. Case No. 80 of 1948; that on 9-8-1948, a deed of sale was executed by Byomkesh in favour of Orambabala in respect of the reversion vested in Byomkesh; that on 30-8-1948, the disputed property which was covered by the registered mokarari lease and by the deed of sale was attached : that on 13-9-48, Orambabala filed a claim under Order 21, Rule 58, Civil P. C. to the attachment of the disputed property. This was registered as claim Case no. 162 of 1948. That on 31-8-1949, the said Olaim Case was allowed and attachment was directed to be lifted: On 20-9-1949, the plaintiff filed the present suit purporting to be under Order 21, Rule 63, Civil P. C. on the allegations referred to above. In this suit the plaintiff impleaded Orambabala as defendant No. 1, the firm Nootbehari Das Byomkesh Das as defendant No. 2 & Byomkesh Das as defendant No. 3. In para 5 of the plaint the plaintiff inter alia alleged that the mokarari lease and the kobala. in favour of defendant No. 1 was entirely without consideration and was a fraudulent, sham and paper transaction; that the said mokarari lease and kobala were executed with the intention of defrauding the plaintiff of his just dues. The plaintiff valued the suit for the purpose of jurisdiction, at a sum of Rs. 9000/-, this being, according to him, the value of the disputed property but he paid court-fees under the provisions of Sch. 2, Article 17(i), Court-fees Act. In the plaint the plaintiff made the following prayers : (ka) It may be declared that the property described in the schedule to the plaint is owned and possessed by defendant No. 3 and that the same is liable to attachment and sale in Ex. Case No. 80 of 1948 started by the plaintiff and that the plaintiff has the right. to cause attachment and sale of the said-property; (kha) That the summary order in Claim Case No. 162 of 1948 be set aside; and (ga) For costs of the suit and incidental reliefs. The defendant filed a written statement on 10-1-1950. On the pleadings of the parties issues were raised, one of the issues being Issue No. 3 which was in these terms: "Has the Court jurisdiction to try the suit?" This issue was taken up for preliminary hearing and by order dated 24-2-1951, the learned Judge was of opinion that the suit had been over-valued for the purposes of jurisdiction and directed return of the plaint to the Court of the Munsif. The plaintiff has accordingly preferred this appeal.

(3.) Mr. Banerjee, appearing for the plaintiff, has first contended that the suit on a true view of the plaint must be regarded as one under the provisions of Section 53, Transfer of Property Act. He has submitted that the mere fact that no leave under Order 1, Rule 8, Civil P. C. had been taken was immaterial and that such leave could be granted by this Court. I have set out the substance of the plaint In my opinion, the allegation in paragraph 5 of the plaint merely stated that the lease and the kobala were fraudulent transactions intended to defeat the claim of the plaintiff. That allegation merely indicated the motive for the execution of the lease and the kobala. There was no clear aver-ment that the suit was being filed on behalf of the plaintiff and all other creditors of the debtor, defendant No. 2. The suit cannot therefore be regarded as one under the provisions of Section 53 Transfer of Property Act. The first contention must therefore fail.