JAGDISH RAM Vs. TIRATH RAM

JUDGEMENT

(1.) THIS second appeal has been filed by the defendant against the judgment and decree of the Additional District Judge, Amritsar, 7-11-72.

(2.) THE case has a chequered history, Briefly, the facts are that the plaintiff is a joint owner of the property in dispute in equal shares with the defendant. He filed a suit for possession of his one-half share by partition. It was contested by the defendant who controverted the allegations of the plaintiff. He inter alia pleaded that the land was purchased by him benami in the name of the plaintiff him. He further pleaded that the suit was not properly valued for the purposes of Court-fee and jurisdiction that he made construction on the property and that if he suit of the plaintiff was decreed, he was entitled to compensation for the same. On the pleadings of the parties, the following issues were framed :- (1) Whether the site in dispute was purchased exclusively by the defendant and the name of the plaintiff appears in the sale-deed Benami ? (2) In case the above issue is not proved then whether the plaintiff is not entitled to one-half share in the site in dispute ? (3) What construction, if any, has the defendant raised on the site in dispute and of what amount and to what effect ? (4) Relief. The learned trial Court, vide its judgment dated 31st May, 1965, decided the issues in favour of the defendant and consequently dismissed the suit. The plaintiff went up in appeal before the Additional District Judge, Amritsar. At the time of arguments, the respondent raised a preliminary objection that the memorandum of appeal was not correctly valued for the purposes of Court-fee and jurisdiction. The learned Additional District Judge came to the conclusion that the matter in that regard had not been properly tried by the trial Court. Consequently, he accepted the appeal on 9-12-1966, and remanded the case to the trial Court for deciding the matter of court-fee and jurisdiction, after allowing the parties to lead evidence.

(3.) THE trial Court, on 31st May, 1967, after going through the order of remand, held that the appellate Court had remanded the case with regard to court-fee and jurisdiction and it could not go into the merits. Therefore, the Court came to the conclusion that the value of the properly was RS. 4,000/- for the purpose of court-fee and jurisdiction. Consequently, it directed the plaintiff to make up the deficiency in the Court-fee. However, the plaintiff did not make up the deficiency as directed. Consequently, the Court rejected the plaint under O. 7, R. 11, Civil P. C. (hereinafter called the Code), vide its order dated 1st July, 1967. The plaintiff went up in appeal before who vide order dated 30-10-1969, remanded the case to the trial Court. The plaintiff then deposited the court-fee on 3-12-1969, as assessed by the Court. The plaintiff also made an application that the whole case be heard on merits and the Court vide its order dated 4th May, 1970, held that according to the remand order, the whole case was required to be decided by it. It then decreed the suit of the plaintiff on 24th July, 1970. The appeal by the defendant against the judgment and decree of the trial Court was affirmed by the Additional District Judge vide his order dated 7-11-1972. He has come up in second appeal to this Court.