TARAMONI DASI Vs. KALIDASI MAJHI

JUDGEMENT

(1.) This Rule was issued on an application under Section 115 of the Code of Civil Procedure and is directed against Order No. 18 dated 25th May, 1974 passed by Sri A. N. Mitra, Additional District Judge, 4th Court, Alipore, in Title Appeal No. 530 of 1973. By the above order the learned Additional District Judge held that the appeal was maintainable in his court and directed the appellant to pay the deficit court-fees. Being aggrieved, the appellant has come up before us.

(2.) The facts of the case may briefly be stated as follows :-- The opposite parties 2 to 4 brought a suit. The plaint case is that the suit property comprising 13 decimals of land with pucca building thereon belonged to Ambika Charan Pramanik, now deceased, the husband of the defendant No. 1 and Gurupada Pramanik in equal shares. Ambika died leaving behind the defendant No. 1 as his widow who inherited 8 annas share and continued to possess the same in ejmali with Gurupada Pramanik who owned the remaining eight annas share. The defendant No. 1 thereafter by a kobala sold her above share in respect of the suit land and other properties to the plaintiffs Nos. 2 to 4 who thereafter on amicable partition with Gurupada began to possess the property separately. The defendant No. 1 filed Title Suit No. 48 of 1950 for setting aside the above kobala and got a decree. The decision was affirmed upto this Hon'ble Court. On the basis thereof the present defendant No. 1 obtained an order of joint possession with Gurupada Prama-nik. During the pendency of the aforesaid suit the plaintiff No. 2, since deceased, with the permission of the said Gurupada raised a residential pucca building on the suit land and the plaintiffs had been residing in such building and possessing land thereunder. The present defendant No. 1 by way of execution got possession of the property except the present suit land measuring 13 decimals. The plaintiffs being in possession of the above building, the defendant No. 1 did not get any possession in respect of such building. The plaintiffs Nos. 2, 3 and 4 filed objection in Title Execution Case No. 37 of 1958 for obtaining possession in respect of the suit land, as a result of which the defendant No. 1 did not get possession. Against such decision the defendant No. 1 filed F. M. A. 55 of 1960 in which it was decided that the defendant No. 1 would be entitled to get back possession of the above 13 decimals of land on removal of the structures. On 22nd of July, 1959 Gurupada transferred his 8 annas interest in favour of the plaintiff No. 1 Kalidasi, who was not a party to the above suit brought by the defendant No. 1. The defendant No. 1 Taramani filed Title Suit No. 33 of 1960 for partition and in such suit the present plaintiff No. 1 was declared to have 8 annas share on the strength of the deed of gift. The above order of delivery of possession on the removal of structures is highly prejudicial to the plaintiffs, and as such the plaintiff has filed the present suit for confirmation of possession in respect of the suit property upon declaration of title and for permanent injunction. For the purpose of jurisdiction and court-fees the plaintiffs valued the suit under Section 7 (iv) (c) of the Court-Fees Act at Rs. 12,000. The learned court below decreed the suit on declaring the eight annas share of the plaintiff No. 1 in the suit land and confirming her joint possession therein and restraining the defendants from disturbing the plaintiffs' possession of the disputed property in any way till the final partition of the disputed property between the plaintiff No. 1 and the defendant No. 1 by metes end bounds either amicably or by the decree of a competent court. Against such judgment and decree an appeal was filed by the defendant No. 1. The appeal was filed on 16th of June 1973 and the appeal was valued for the purpose of court-fees at Rs. 160 on the basis of the valuation made by the Pleader Commissioner. An objection was taken by the respondents Nos. 1 to 4 that since the plaintiffs have valued the suit under Section 7 (iv) (c) of the Court-Fees Act at Rs. 12,000 and as the appellant wants to have the entire decree set aside, the instant appeal has to be valued at Rs. 12.000 for the purpose of court-fees.

(3.) Though the appeal was filed before the District Judge, it was urged on behalf of the appellant that the appeal was wrongly filed before the District Judge and the appeal ought to have been filed before the High Court as the suit out of which the present appeal arises was instituted long before the Amendment of the Bengal, Agra and Assam Civil Courts Act. By such amendment the pecuniary jurisdiction of the District Judge to entertain an appeal was raised from Rs. 10,000 to Rs. 15,000. It was urged on behalf of the appellant that this amendment will not determine the forum in respect of the appeals arising out of suit instituted before the commencement of the amendment. It was contended that the amendment had no retrospective effect and as such the vested right of preferring an appeal in a particular forum could not be taken away. The same argument has been advanced before us most ably by Mr. Ganguly, learned Advocate for the petitioner. In support of his contention he cites before us several decisions including 1905 AC 369 (Colonial Sugar Refining Co. Ltd. v. Irving). Mr. Ganguly next refers to a Full Bench de-sion of the Allahabad High Court reported in AIR 1928 All 437 (FB) (Ram Singha v. Shankar Dayal). In this case their Lordships relying on the Privy Council decision referred to above laid down :