BISHWA NATH SINGH Vs. RUP NARAIN

JUDGEMENT

(1.) The Stamp Reporter has done no more than his duty in bringing this question forward, and the position taken up by him can be supported by strong arguments based upon the actual wording of the relevant clauses of the Court Fees Act. Nevertheless 1 cannot escape from the feeling that the line of action suggested does violence to the spirit of the Act. The plaintiff's case is that property of which he is the joint owner has been sold without his concurrence or authority, and the essential relief sought is recovery of possession upon such terms as the trial court may see fit to impose. The suit could have been framed as one for recovery of possession pure and simple; this is made the more apparent by the form of decree actually passed. The case of Raja Dhakeswar Prasad Singh V/s. Jivo Chaudhry (1918) 3 Patna L.J. 448 is not really in point. The sale in that case had been held by order of a public officer acting under statutory powers; it conveyed a good title to the purchaser unless it could be set aside on the ground of irregularity or fraud. "The declaratory relief sought was a necessary part of the suit." Here no relief by way of declaration has been grant ed; the decree passed is one for recovery of possession of property paying annual revenue to Government. It seems to me clearly against the intention of the Legislature that in a suit (or appeal) where the question in issue is the possession of land so assessed to revenue, the valuation of the property for purposes of court fee assessment should be otherwise than under Sec. 7(v)(a) or (b) of the Court Fees Act.

(2.) The difficulty remains that the plaint has been so worded that it falls within the purview of Section 7(iv)(c). This difficulty is a real one, and I do not think it can be got over unless the plaintiff can be permitted even at this stage to amend either: (a) the plaint itself, or. (b) the statement of "the amount at which the relief sought is valued" in the said plaint.

(3.) I hold, therefore, that as against the plaintiff, who is the respondent to this appeal, the report must be affirmed. It will remain open to the said plaintiff to move the Bench hearing the appeal for leave to amend either the plaint or the valuation as above suggested. I would, however, warn him that he would do well to present himself at the hearing with the money necessary to make up the reported deficiency in his hand: if he is refused leave to amend, he may be required to make good the deficiency before he is heard on his petition of cross- objections.