HAFIZ MD FATEH NASIB Vs. HAJI ABDUR RUB

JUDGEMENT

(1.) In this Rule which has been obtained by the plaintiff the only question is what should be the court-fee payable by the plaintiff. The plaintiff instituted a suit for recovery of possession as mutwalli of certain properties described in the plaint. The plaintiff's case is that the subject-matter of the suit formed part of a public Wakf created as far back as 1876 and 1880 and that certain persons while acting as mutwallis illegally transferred certain properties, some of which form the subject-matter of the suit treating them as secular properties. The plaintiff seeks to recover possession of those properties as mutwalli on the ground that they are wakf properties and that the alienations are unauthorised. In the plaint the plaintiff valued the relief at Rs. 12,000/- and paid court-fees on that basis. At the hearing a preliminary issue was raised as to the sufficiency of the court-fee and during the trial of this issue certain papers relating to the valuation of the property were filed from the office of the Corporation of Calcutta and the plaintiff also conceded that the market value of the properties would be Rs. 40,000/-. The learned Subordinate Judge forthwith directed the plaintiff to pay ad valorem court-fee upon that amount and it is against this order that the present Rule has been obtained.

(2.) Mr. Ghose appearing in support of the Rule has contended in the first place that this suit is to be governed by Section 7 Clause (vi) (c), Court-fees Act and the Court-fee should be paid upon the amount at which the plaintiff valued his relief in the plaint. We were at first very much impressed by this argument. On closer scrutiny however, we find that this argument cannot be accepted. Prom an examination of the plaint it appears that the plaintiff did not make any prayer for declaration of his title and upon the facts stated in the plaint it was not necessary to make that declaration either. If the principal relief is for declaration and the plaintiff's right to possession depends upon his being entitled to that declaration this suit may legitimately come under Section 7(iv) (c). In such a case the relief for possession may be regarded as a consequential relief; but where, as in the present case, there is no prayer for any declaration and the only prayer is for recovery of possession, we cannot hold that the case comes under Section 7 (iv) (c). Mr. Ghose relied upon the decision of a Division Bench of this Court in the case of -- 'Mahomed Eshaque v. Mahammad Amin', AIR 1948 Cal 312 (A). At page 319 Mukherjea. J. in delivering the judgment of the Court made the following observations: "The plaintiff was undoubtedly suing as mutwalli and he wanted to recover possession of properties, admitted by the defendant to be wakf properties, solely in that capacity. The mutwalli is not the owner and he can be called upon to value his suit in accordance with his estimate of what the value of his rights as mutwalli of the properties would amount."

(3.) There can be no doubt that his Lordship was assuming for the purpose of that case that the suit was governed by Section 7(iv)(c). From the opening paragraph of the judgment of that case it is clear that in that case the suit was for a declaration of title as a mutwalli and for recovery of possession of the property in that capacity. In that case, therefore, there was a prayer for declaration and also a prayer for recovery of possession and that case could be treated as falling under Section 7(iv) (c). But in the case before us there is no prayer for declaration of the plaintiff's title as a mutwalli of the wakf estate and, as we have already stated, upon the facts stated in the plaint it was not necessary for the plaintiff to make that prayer. We cannot, therefore, accept Mr. Ghose's argument that the suit should be governed by Section 7(iv)(c). Therefore we must hold that this case comes under Section 7(v) of the Court-fees Act.