LAKHYESWAR KARMI Vs. PADMABATI KARMI

JUDGEMENT

(1.) PLAINTIFF (opp. party no. 1) filed a Title Suit valued at Rs. 9600/- on which a court-fee of Rs. 1086/- was payable. She filed an application to sue in forma pauperis alleging that the total property belonging to her would be worth Rs. 240/. The defendants contested the pauperism and took a specific plea that plaintiff was in actual possession and enjoyment of one-third of the property inherited by her from her mother in her own right, title and interest. Plaintiff's interest would be about 7 acres and odd yielding an income of Rs. 1000/- per annum. The learned Subordinate Judge, Bargarh, came to the conclusion that plaintiff No. 1 was not in possession of the property she inherited from her mother. On that finding he held that she had no sufficient means to pay the requisite court-fee and allowed her application to sue in forma pauperis. Against this order, the civil revision has been filed.

(2.) MR. Sinha contends that the learned Subordinate Judge has recorded no finding that the Opposite Party No. 1 has no interest in the properties inherited by her from her mother and his finding that she was not in possession of those properties was contrary to the evidence on record and is based on a wrong notion of law that the draft record of rights is not admissible in evidence. Mr. Misra, on the other hand, contends that whatever may be the error the Subordiante Judge might have committed, this Court cannot interfere with it in revision and further the lower court's order substantially involves the question of court-fee which can be assailed only by the State and not by the petitioners. These contentions require careful consideration.

(3.) THE contention of Mr. Sinha that the learned Subordinate Judge has not recorded any finding regarding extinguishment of plaintiff's title in her mother's property is not disputed by Mr. Misra. The learned Subordinate Judge exercised his jurisdiction illegally in over-looking the provision of Order 33 Rule 2, C. P. C. which runs thus :