ESAH Vs. WAKF COMMITTEE KOTA

JUDGEMENT

(1.) THIS SB. Civil Misc. Appeal under Order 43 Rule l (u) C. P. C. has been filed against the judgment and order dated August 17, 1977 passed by learned Civil Judge, Kota in Civil Appeal No. 57/72 and 85/74 whereby the case was remanded to the trial Court which arose from the judgment and decree dated July 15, 1971 passed by learned Additional Munsif Magistrate, Court No. 1, Kota.

(2.) IT will suffice to state for the purposes of this appeal that appellant plaintiffs filed the suit against the respondents inter alia pleading that two particular mosques situated in Kota did not belong to the Wakf Committee and Rajasthan Board of Muslim Wakf. IT was pleaded that the entire property is owned and possessed by the Choti Panchayat, Momnan, Kota and that these properties had been dedicated to the Wakfs and not were constructed from personal funds belonging to appellants and Mohammedans in general or pulbic have not contributed towards it. However, in the gazette dated Sept. 8, 1966 the property was declared Wakf property and shown at items No. 6,7 and 8. A declaration was, therefore, sought that the property is not Wakf property. The suit was contested and inter alia an objection regarding valuation and court fee raised stating that the market value of the property was Rs 1,50,000/- and the appellants should have paid court fees on this amount. Since the court fee has not been paid on this amount the suit, it was contended, deserved to be dismissed. Several issues were framed by the trial Court and issue No. 8 was regarding the above plea along with another plea that no consequential relief has been claimed. The trial Court, after recording evidence produced by both the parties and hearing arguments, decreed the suit of the appellants The respondents preferred to file an appeal which was decided by the impugned order dated August 17, 1977 by which the judgment and decree of the trial Court was set aside and the matter was remanded under the provisions of 1 l (u) of the Rajasthan Court Fees and Suits Valuation Act, 1961 (hereinafter referred to as 'the Act' (with a direction that the trial Court should give opportunity to both the parties to amend their pleadings and thereafter recording the evidence and should decide the question of payment of court fee on the plaint. None has appeared on behalf of the respondents inspite of notice.