JOGI SAHU Vs. UMESH CHANDRA MISHRA

JUDGEMENT

(1.) THE conclusion of the learned Munsif, Kodala that he had no pecuniary jurisdiction to try Title Suit No. 58 of' 1978 and consequential direction to the petitioners, the plaintiffs to take return of the plaint was assailed in appeal before the learned Subordi - nate Judge, Aska, who affirmed it. The correctness of the conclusion is questioned in this case.

(2.) A brief reference to the factual aspects is necessary. The suit land measuring A G. A -4 cents was claimed by the plaintiffs as rayati to be, as recorded in the settlement records as per 1951 settlement. They claimed that the viilagers of Manisila have been using some portion thereof as burial ground, a portion as Gochar, and balance as place of worship by installing one village Goddess named Budhima Thakurani. On 1 -4 1973, the defendants -opposite parties attempted to cultivate the suit land. The suit was filed to restrain the defendants. It was also claimed in the suit that the Government has no manner of authority to start proceeding under the provisions of the Orissa Prevention of Land Encroachment Act, 1972, in regard to possession of the plaintiffs over the suit land. The prayer in essence was to declare the suit land as a communal one, and to restrain defendants 1 to 17 from interfering with possession of the plaintiffs over the suit land, and consequently to cancel the patta granted in favour of defendant No. 1 (opp. party No. 1 in this proceeding). The stand of the defendants was that the suit land originally belonged to Athgarh estate and there is no semblance of truth in the assertion that the suit land was being used as burial ground and the Bijesthali of village deity. Defendants 2 to 7 claimed to be bona fide purchasers of the suit land from defendant No. 1, and asserted that the land had been settled in favour of defendant No. 1 in 1976 to the knowledge of everybody by the proper authority. A definite stand W3s taken that the valuation of the suit land was much higher than the value fixed by the plaintiffs in the olaint and accordingly, the suit was under - valued. Six issues were framed by the learned Munisif, for adjudication. One of the issues was as follows : 'Whether the suit is properly valued and has this Court pecu - niary jurisdiction to try the suit 1' An application under Order 14, Rule 2 of the Code of Civil Procedure, 1903 (in short, 'CPC') was filed to try the said issue as a preliminary issue. The learned Munsif heard both sides. He observed that the plaintiff No. t admitted that the valuation of the suit land is more than Rs. 1 lakh. Accordingly, it was concluded that the Court had no pecuniary jurisdiction to try the suit, and therefore, the plaintiffs were directed to take return of the plaint for presentation before the proper Court. As the plaintiffs did not file any application under Sub - rule (2) of Rule 10 of Order 7, the learned Munsif directed the plaintiffs to take return of the plaint for presenting the same in the Court of proper jurisdiction, by order dated 28 -5 -1983. On that date it was observed that counter affidavit was filed by the plaintiffs to the petition filed by the defendants purportedly to be one under Order 14, Rule 2. Sub -rule (2 -A) CPC. The order of the learned Munsif was assailed in appeal before the learned Subordinate Judge,Aska,who treated the order of the learned Munsif to be one under Order 7, Rule 10 CPC. On a reference to the evidence of plaintiff No. 1, who was examined as PtV 1 by the parties, it was observed that the conclusion of the learned Munsif were proper. He noticed that in the written statement, defendants had indicated absence of pecuniary jurisdiction of the Court by contending that the valuation of the suit land was tar above than the valuation indicated by the plaintiffs. It was observed that though the valuation of the suit is to be put by the plaintiff, such valuation is covered Under Section 7(iv)(c) of the Court -fees Act, 1870 (in short, the 'Act') such valuation would not be arbitrary, capricious or very low. Where the valuation is grossly disproportionate in comparison with the market value, the Court has to fix the proper valuation, and if it is seen that the Court lacks jurisdiction it shall return the plaint to the plaintiff to file before the proper Court in terms of Order 7. Rule 10 CPC.

(3.) I shall first deal with the question whether the question relating to valuation can be adjudicated as a preliminary issue. Order 1 - Rule 2, CPC, has now been substituted by Act 104 of 1976. The substituted,. Rule 2 after the aforesaid amendment which is operative from 1 -2 - 1977 reads as follows :