RAMAKANT MISSIR Vs. KAMLA PRASAD SUKUL

JUDGEMENT

(1.) This is a reference under Section 5, Court-fees Act.

(2.) One Ramyad Gosain, proprietor of three annas and odd share in touzi No. 1484, mortgaged this share usufructuarily in the year 1911 to defendants 1 and 2 to secure a loan of Rs. 1,600. 12 bighas of land which forms the subject-matter of the present appeal was included in the hypothecated property as bakasht land. The present suit has been brought by the plaintiffs as successors-in-interest of Ramyad Gosain to redeem the mortgage. They also seek khas possession of these 12 bighas as against defendants 3 and 4 alleging that these defendants are the benamidar for defendants 1 and 2. The plaintiffs have succeeded as regards the prayer for redemption in both the Courts below and this portion of the decree is not challenged. The present appeal is by defendants 3 and 4, who claim occupancy rights in the 12 bighas, which they claim to have been settled with them by Ramyad Gosain in 1919 with the consent of the mortgagees. This defence was accepted by the Munsiff, bus, in appeal by the plaintiff, the lower appellate Court has held that there was no such settlement and has granted the plaintiff the relief prayed for. Hence, the present appeal.

(3.) The suit was valued in the Court of first instance at Rs. 1,600 under Clause (ix) of Section 7, Court-fees Act. The same value was placed by the plaintiff on his appeal in the District Court. On an objection by the Stamp reporter that the relief as regards the 12 bighas is not covered by Clause (ix) of Section 7, the District Judge accepted the valuation but on a different basis, namely Rs. 683-7-3 on account of a set-off claimed by the plaintiffs and refused by the Munsiff and the balance of Rs. 916-8-9 as the value of the 12 bighas of land. Regarding this latter sum, the District Judge remarked :