SHANKAR Vs. UDHE SINGH

JUDGEMENT

(1.) Udhe Ram who has also been described at some places as Udhe Singh and another instituted a suit for a declaration that the order dated 19th November, 1959 partitioning the land in dispute was without jurisdiction and, therefore, null and void and for a permanent injunction restraining the defendants from interfering with the disputed property. On the defendants contesting the suit a preliminary issue was framed whether the plaint had been properly valued for purposes of Court-fee and jurisdiction. We are not concerned with the other issue on the question of limitation. The Court below held that the case was covered by Section 7(iv)(c) of the Court Fees Act and, therefore, Court fee was to be paid on the value of the property. The value of the property was held to be Rs. 15,000/-. The plaintiff was accordingly called upon to pay the Court fee on Rs. 15,000/- and also amend the plaint in accordance with the decision. It appears that the plaintiff did not want to pay the Court fee, with the result that the plaint was rejected. The matter was taken on appeal to the Court of the Senior Subordinate Judge, Gurgaon. From the order of the lower appellate Court, it appears that the order for partition had been passed by the Revenue Officer, Ballabgarh, on 19th November, 1959 and the plaintiff had earlier also filed a suit for a declaration that this order was null and void because the Revenue Officer was not competent to pass it as the field number in question was not agricultural land. On that occasion also, an objection was taken by the defendants that the suit as framed was incompetent and that the plaintiff should pray for consequential relief for setting aside that order. This objection was upheld and the plaintiff was required to amend the plaint accordingly. Having failed to comply with the Court's direction, the plaint was rejected on 16th April, 1962. It was thereafter that the present suit was instituted on similar allegations, again seeking declaration that the order passed by the Revenue Officer was illegal and without jurisdiction. Similar objection was again raised whereupon the Court ordered the amendment of the plaint. As a result of this the plaintiff added the relief for setting aside the impugned order and also for an injunction restraining the defendants from interfering with the plaintiff's possession and enjoyment of the property in suit. As mentioned earlier, the suit was rejected because the plaintiff declined to pay Court-fee.

(2.) During the course of arguments before the lower Appellate Court, the plaintiff-appellant again gave up his relief for setting aside the order as also the relief for injunction and confined his prayer to the declaration simpliciter. Reliance was placed before the lower Appellate Court on a Bench decision of this Court Kirori Mal V/s. Collector, Delhi, 1963 65 PunLR 711. Relying on the ratio of this decision and also on the ratio of the decision Government of Pepsu V/s. Partap Singh,1952 AIR(Pepsu) 119, the lower Appellate Court came to the conclusion that a suit for simple declaration without consequential relief was competent. The earlier decision of the trial Court was held not to be binding because it was an erroneous decision on a question of law. For this proposition, reliance was placed on a Bench decision on a question of the Lahore High Court in Taliamand and another V/s. Muhammad Din, 1930 AIR(Lah) 907. On this view, the appeal was allowed and setting aside the trial Court's order, the case was remitted back for decision on merits.

(3.) On second appeal, the learned counsel for the appellant has submitted that the Court below is wrong in holding that the previous decision is not res judicata. He has in this connection placed reliance on a Bench decision of this Court in Barkat Ali V/s. Karim Bakhsh, 1933 AIR(Lah) 325, in which Shadi Lal, C.J. speaking for the Bench, observed as follows :-