ANNAPURNA CHATTERJEE Vs. SABITA GUHA

JUDGEMENT

(1.) This appeal arises out of a final decree passed in a suit for partition. The appellant as well as the respondent No. 1 are purchasers from the original owners of the land in dispute. One of the original co-sharers, namely, Binapani Biswas instituted a suit for partition against her co-sharer Pranab Gopol Biswas. The suit was valued at Rs. 8,000/-. A preliminary decree was passed on April 11, 1967 and thereafter a final decree was passed on December 13, 1971. Before the final decree was passed, the trial court went into the question of valuation of the disputed property for the purpose of payment of stamp duty. Upon a consideration of the materials on record the learned Judge in the trial court came to the conclusion that the disputed property was valued at Rs. 24,000/-. The trial court directed the plaintiff to pay the stamp duty on that basis. When the final decree was drawn up, it appears that the suit was shown to be valued at Rs. 24,000/-. Agamst the preliminary decree the present appellant filed an appeal before the learned District Judge on February 3, 1972 upon the footing that the suit was valued at Rs. 8,000/-. On February 10, 1972 the appellant preferred the present appeal to this Court on the basis that the suit was valued at Rupees 24,000/-. It appears that on June 6, 1973 when the appeal was taken up for hearing by the learned Additional District Judge, the learned Advocate for the appellant stated that he would not proceed with the appeal any further and prayed that the appeal might be dismissed for non-prosecution. The learned Additional District Judge accordingly dismissed the appeal for non-prosecution.

(2.) The learned Advocate for the respondent has taken a preliminary objection before us that the present appeal is not maintainable in this Court inasmuch as the decree was passed in a suit which is valued at Rs. 8,000/-. The learned Advocate for the appellant, however, contends that the appeal being against the final decree in which the suit is shown to have been valued at Rs. 24,000/- the present appeal is maintainable in this Court. The question which arises for consideration therefore, is what is the value of the suit in which the decree appealed against has been passed ? There is no dispute be- tween the parties that the suit was originally valued at Rs. 8,000/-. That being so, an appeal would lie before the learned District Judge. The learned Advocate for the appellant has contended that by Order No. 149 dated February 12, 1971 and Order No. 154 dated September 9, 1971 the learned Judge in the trial Court while dealing with the question of valuation of the suit-land for the purpose of payment of stamp duty had come to the conclusion that the suit-land was valued at Rs. 24,000/-. He has accordingly contended that after this finding by the learned Judge in the trial court the valuation of the suit was raised to Rs. 24,000/-. In support of this contention he relies upon the valuation as given in the final decree. We are unable to accept this contention advanced on behalf of the appellant. In the two orders mentioned above there is no indication that the learned Judge raised the valuation of the suit from Rs. 8,000/- to Rs. 24,000/-. On the contrary it appears from the said two orders that the learned Judge made it quite clear that he was considering the question of valuation only for the purpose of payment of stamp duty for a final decree. Apart from this it is doubtful whether it is open to a court to enhance the value of a suit after the preliminary decree has been passed in the suit in which the value of the suit has been fixed at a certain amount. In such a case it is likely to affect the right of a party to file an appeal before the appropriate forum against the preliminary decree on the basis of the valuation of the suit as stated in the preliminary decree. It is not however necessary for us to go into this aspect of the matter in details as we find that in the present case the learned Judge in the trial court did not enhance the valuation of the suit. When the final decree was drawn up by the office of the earned Subordinate Judge, the suit was shown to be valued at Rs. 24,000/- by mistake. This mistake however did not prevent the appellant from filing the appeal before the learned District Judge. As already stated the appellant filed an appeal before the learned District Judge but allowed the same to be dismissed for non-Drosecution. The appellant could have drawn the attention of the trial court about this mistake in the valuation as given in the final decree and they could have proceeded with the appeal which they had filed before the learned District Judge. It is well established that the forum in which an appeal is to be filed is determined by the valuation of the suit (Vide Ijjatulla Bhunia v. Chandra Mohan reported in (1907) ILR 34 Cal 954).

(3.) We have also heard the learned Advocate for the parties on the merits of this appeal. In the facts and circumstances of the present case we are of the opinion that the preliminary objection raised on behalf of the respondents must be upheld. In view of the fact that the appeal fails on a preliminary ground regarding its maintainability in this Court we refrain from dealing with the merits of the case. This appeal, therefore, fails on the preliminary ground and it is, accordingly, dismissed. In the circumstances of the case, however, we make no order as to costs.