JHAURI PASWAN Vs. LOBHI PASWAN

JUDGEMENT

(1.) Second Appeal No. 913 of 1964 was filed on 2nd of December, 1964. On 17th of December, 1964, the Taxing Officer of the Court passed an order directing the trial court to fix the market value of property under dispute with reference to date of the institution of the suit as the Stamp Reporter had reported that the value of the suit land as given in the plaint and in the memorandum of appeal at Rs. 25 only was low since the lands measured 9 1/2 dhurs and were situate in the town of Patna. It appears that the sole plaintiff respondent Barhu Paswan died on the same day i.e. 17th of December, 1964. A substitution petition was filed within time to substitute the brother and sister of deceased Barhu Paswan in his place. The Registrar of the Court allowed the prayer for substitution subject to such objections which might be raised later on. The trial court reported that the value of the suit land should be Rs. 260. The appellant was permitted to correct the valuation and pay the court fee for the memorandum of appeal on the said valuation of Rs. 260. Thereafter, the appeal was admitted on 1st of February, 1966, Notices of the appeal were validly served on the substituted heirs of the deceased respondent but they did not appear to contest the appeal. The office thereafter put up the matter as to realisation of deficit court fee on the plaint on the basis of valuation fixed by the trial court. The matter came before a learned single Judge of this Court and on 5th of January, 1967 he passed the following orders:

(2.) Various grounds have been taken on behalf of the petitioners in this miscellaneous judicial case including that the persons who were substituted in place of the deceased sole plaintiff respondent were not his heirs. The petitioners claim that the deceased sole respondent had executed a registered deed of gift in favour of the petitioners on 8-1-1964 and the persons who were substituted in the place of the deceased even if they were his heirs were left with no interest in the property in dispute and it was in those circumstances that they did not appear in the second appeal and file the deficit court-fee on the plaint. The petitioners claim is that they being the legal representatives of the deceased sole respondent should have been substituted in his place. It is further claimed by the petitioners that they had no knowledge of the pendency of the second appeal in this Court and as soon as they came to know of it they filed the present application. They have also challenged the fixation of the valuation by the Trial Court on the ground that it was done ex parte after the death of the sole respondent.

(3.) It appears that the appellants of the second appeal who are opposite party in this miscellaneous judicial case took a stand that the miscellaneous case was not maintainable at the instance of the petitioners and when the matter came before the learned Single Judge who had allowed the appeal and dismissed the suit by his order dated 14th of April. 1967, he referred this miscellaneous judicial case to a Division Bench after formulating the points which arose for decision in the case according to him as follows :--