NASIRUDDIN MALLICK Vs. ABDUL AZIZ MALLICK

JUDGEMENT

(1.) THE opposite party no. 1 filed Title Suit no. 78 of 1976 renumbered as Title Suit No. 112 of 1980 in the 1st court of the learned Additional Munsif, Howrah against the petitioners and other opposite parties for declaration of title over the suit property as a Mutwalli and for recovery of possession and injunction and valued the suit at Rs. 100/ -. The defendant/petitioners in their written statement inter alia, disputed the valuation of the suit and alleged that the value of the suit property being more than rupees 4 lakhs, ad valorem court fees should have been paid on it and the learned Munsif had no pecuniary jurisdiction to try the suit. The petitioners subsequently filed an application on 10th September, 1982 for deciding the valuation matter first and the learned Munsif by his order date 25th March, 1983 accepted the valuation given by the plaintiff and dismissed the said application of the defendant no. . . . . . holding inter alia, that the principal relief claimed in the suit being declaration of title as mutwalli, the valuation of the suit should be according to provisions of 7 (iv) (c) of the West Bengal Court Fees Act, 1970. The learned Munsif relief upon the decision reported in AIR 1948 Calcutta 312; air 1954 Calcutta, 101 and 57 CWN 820.

(2.) MR. Ghose Ray, learned advocate appearing on behalf of the petitioners contended before me that since the principal relief prayed by the plaintiff in the suit was for recovery of possession the provisions of Section 7 (v) of the West Bengal Court Fees Act, 1970 would be attracted and in support of his contention referred to the decisions in Manick Chand Mondal and Anr. v. Sudhir Kumar Mondal reported in 64 CWN page 80, Sisir Kumar Dutta and Ors. v. Sushil Kumar Dutta, reported in 65 CWN page 1 (Special Bench); Smt. Bela Rani Bhattacharyyee and Ors. v. Khandkar Ashadar Rahaman and Ors. , reported in air 1975 Calcutta 79; Narayangunj Central Co-operative Sale and supply Society Ltd. v. Maulvi Mafizuddin Ahmed and Anr. ,reported in 38 CWN 589 (Full Bench); Taramopi Chandra and Ors. v. Md. Ali Haider, reported in 80 CWN 1082, and Sambhu Nath Singh and Ors. v. Sankarananda banerjee, reported in AIR 1981 Calcutta 196.

(3.) MR. Haradhan Banerjee, learned Advocate appearing on behalf of the opposite party, however, has submitted that since the principal relief in the suit is for declaration of the Mutwalli right over the suit property, the suit falls under section 7 (iv)9b) read with 7 (iv) (c)and not under Section 7 (v) of the West Bengal Court Fees Act, 1970 and that the question of Court fees an plaint is primarily, the question between the plaintiff and the court and the defendant can have no grievances in the matter, and also has no right to challenge the finding of the court on that issue in revision in support of is contentions. Mr. Banerjee relied upon the decisions in Hafiz Md. Fateh Nasib v. Hazi Abdur Rub and Anr. reported in the AIR 1954 Calcutta, 101, Md. Esha que v. Md. Amin and Ors. reported in AIR 1948 Calcutta, 312 and also shri Rathnavarmaraja v. Smt. Vimala reported in AIR 1961 SC 1299.