HUKAM CHAND Vs. HARISH CHANDER

JUDGEMENT

(1.) Harish Chander son of Siri Ram of Palwal obtained a preliminary decree for possession of his half share in the house in suit by partition and for recovery of the mesne profits against his brother Hukam Chand. Proceedings wore taken for partition of the property by metes and bounds, but the local commissioner reported that the property was not partible. On 17-4-1953, the patties agreed to the sale of the suit property and to the distribution of its proceeds between the cosharers. It was sold for Rs. 4, 300/- and the local commissioner also made a report in respect of the mesne profits.

(2.) Hukam Chand filed objections to the sale and also objected to the mesne profits awarded by the local commissioner. The Court overruled the objections and passed a final decree for possession, of the entire suit property in favour of the plaintiff and ordered that the defendant shall get Rs. 2,150/-less halt commission of sale as his shares in the suit property. The Court also ordered the defendant to pay a sum of Rs. 280/- as mesne profits. Hukam Chand filed an appeal in the Court of the Additional District Judge, Gurgaon, on the ground that the mesne profits awarded to the plaintiff should be reduced by Rs. 110/- and also urged that the sate was invalid as it was not proclaimed properly and the purchaser had not deposited the purchase-money within time. The Additional District Judge, however, did not decide the apeal on the merits but ordered on 6-4-1954 that the appeal was against a decree and the appellant must pay 'ad valorem on the value of the property involved in appeal and granted time till 12-5-1954. As the deficiency in Court-fee was not made good by 12-5-1954 the appeal was rejected on that day. The defendant has come to this Court in second appeal.

(3.) The appeal was filed before the Additional District Judge, Gurgaon, on a court- fees stamp of Rs. 9-4-. Re. I/- was paid as court-fee on a miscellaneous appeal and court-fee of Rs. 8/4/- was paid as payable on Rs. 110/- being the amount of mesne profits involved in the appeal. As regards the appeal in respect of mesne profits there is no doubt that the Additional District Judge should have heard the appeal as full 'ad valorem' court-fee was paid en the amount involved in appeal, and I am unable to see any reason why the appeal 'qua' the mesna profits should have been dismissed on the ground of the non-payment of court-fee. Nor has any reason been suggested by the learned counsel for the respondent.