SHYAM KUMAR Vs. BUDH SINGH

JUDGEMENT

(1.) THIS is a revision petition by the defendant against the order of the Civil judge dated 13-12-75 by which he has held that the suit is cognizable by the civil Court.

(2.) THE plaintiff has filed a suit alleging that he is the owner and in possession of the suit land. It is alleged that the defendant No. 4 purporting to act as the holder of a power of attorney from the plaintiff has executed a sale deed in favour of defendants Nos. 1 to 3 of the land belonging to plaintiff. It is alleged that defendant No. 4 was not appointed by the plaintiffs nor was he the holder of power of attorney from the plaintiffs and consequently the sale deeds executed are void, inoperative and of no effect and therefore they should be cancelled and the defendants be restrained by permanent injunction from interfering with the plaintiff's possession of the suit land. Defendant through an application raised the preliminary objection that the court-fees has not been properly paid and suit has not been properly valued. Another objection raised was that the suit was not triable by a civil court but by a revenue court

(3.) WITH regard to the point of court-fees the trial court has held that it is a question of fact and no definite finding can be given in the absence of clear averment until the written statement is filed and evidence has been recorded. It has opined that it is premature to decide this important question at this early stage. Counsel for the petitioner Mr. Asopa wanted to rely on Section 38 of the rajasthan Court-Fees Act. Apart from what had been urged in the trial court I feel that in view of the fact that the trial court has taken the view that the question of valuation can only be decided after some evidence has been taken, it is not possible for me to interfere at this stage in revision with this finding, of course it is open to the petitioner to raise the objection on the basis of Section 38 of the Court-Fees Act before the trial court as the said question has yet to be decided by it.