CHINTAMANI NAIK Vs. PANCHANAN NAIK AND ORS.

JUDGEMENT

(1.) NABIN had three sons -Luxman, Rama and Bharat. Plaintiff is the son of Bharat through his wife Dalimba. His case is that after the death of his mother, Bharat kept Champa, widow of his elder brother Luxman, as his concubine and through her Defendant No. 1 and the husband of Defendant No. 4 were horn. Defendants 2 and 3 are the sons of Defendant No. 1. By the time of the settlement, Luxman and Rama were dead. Bharat falsely recorded Defendant No. 1 as the son of Rama. In respect of the entire ancestral properties, Defendant No. 1 was recorded in respect of five annas and four pies and Bharat for the balance ten annas and eight pies. Defendant No. 1 and Champa had great influence on Bharat. Bharat executed a registered deed of gift on 7 -12 -1939 in favour of Defendant No. 4 and two registered sale deeds on 2 -1 -1947 and 19 -8 -1950 in favour of Defendant No. 1 in respect of different portions of the land. These documents are old and did not affect the interest of the Plaintiff. Plaintiff filed T.S. 7958 in the Court of the Munsif, Kendrapara, valuing it at Rs. 1040 - for the purpose of court -fee and jurisdiction, for declaration of title over Ka and Kha schedule lands and for recovery of possession on various averments, the details of which need not be mentioned. That suit ended in a compromise. Plaintiff's case is that in the talk preceding the compromise, it had been settled that the Plaintiff would get ten annas eight pies and Defendant No. 1 five annas four pies in Ka and Kha schedule lands. Plaintiff had full confidence in one Bramhananda Mal under whose supervision the compromise was being effected. Sometime after the passing of the compromise decree, Defendant No. 1 interfered with the possession of the Plaintiff and declared that the Plaintiff had no title in any of the lands. On reading the compromise decree Plaintiff came to know that it did not embody the terms which had been settled. This suit is for a declaration that the compromise decree is not binding on the Plaintiff and for partition of Ka and Kha schedule lands allotting ten annas eight pies interest in those lands to the share of the Plaintiff. In para 15 of the plaint, the suit was valued at Rs. 694 - for court -fee and jurisdiction on the footing that the total value of the disputed lands is Rs. 1040 - and the value of Plaintiff's ten annas eight rupees interest is Rs. 694. An objection was raised by Defendant No. 1 challenging the valuation of the suit. It was contended for Defendant No. 1 that the market value of Ka and Kha schedule lands was more than Rs. 2000 -, and the T.S. 5563 having been filed for setting aside the compromise decree the suit is to be valued on the market value of the properties comprised in the compromise decree. It is to be noted that the question of valuation of the suit was emphasised upon to indicate that the Additional Munsif of Kendrapara, before whom the suit is pending for trial, had no jurisdiction to try the suit as he was competent to try suit upto a valuation of Rs. 1000 -. The learned Additional Munsif heard the parties and held by the impugned order that the suit was properly valued at Rs. 694 - and that it was not beyond his own pecuniary jurisdiction. Against this order the Civil Revision has been filed by Defendant No. 1.

(2.) IT may be clarified at the outset that if the valuation of the suit is increased, more court -fee may be payable. Interference in Civil Revision at the instance of Defendant No. 1 is, however, not permissible if it concerned merely a question of payment of less court -fee. If, however, by a wrong determination of the valuation of the suit a Court illegally exercised jurisdiction which it had not, the order is liable to be quashed under Section 115, Code of Civil Procedure even though as a result of such interference the Plaintiff might be called upon to pay higher Court fee. Rathnaarmaraja. Vimla, 1961 S.C.D. 532, is an authority for the view that the High Court cannot interfere under Section 115, Code of Civil Procedure merely on the question of court -fee at the instance of Defendant No. 1.

(3.) SECTION 8 of the Suits valuation Act, lays down that where in suits other than those referred to in the Court -fees Act, 1870, Section 7 , paragraphs, i and ix and paragraph x, Clause (d), court -fees are payable ad valorem under the Court - fees Act, 1870, the value as determinable for the computation of court -fees and the value for purposes of jurisdiction shall be the same. This section postulates that the Plaintiff should first value his claim, for the purpose of jurisdiction would be on the basis of such claim : A.I.R. 1958 S.C. 245. As I have already said, under Section 7(i -A), ad valorem court -fee is payable on the market value of ten annas eight pies interest in Ka and Kha schedule properties. The value so determined would be the valuation of the suit on which jurisdiction of the Court would be determined.