PUSARAM MANIKLAL MARWADI Vs. HIMATRAO BASWANTRAO DESHMUHH

JUDGEMENT

(1.) THIS order will dispose also of Civil Revision No. 608 of 1941. The applicant, Pusaram, who was one of the defendants in the Court below, contends; that the order passed on 25th July 1941 by the lower Court holding that the suit was properly valued for purposes of court-fee and jurisdiction was wrong. In civil Revision No. 608 of 1941 he contends that the order passed by the lower Court on 2nd August 1941 holding that the suit was not barred by the provisions of Section 47, Civil P.C., was wrong In these applications as originally filed the applicant had joined all the parties in the original suit as parties. There were as many as 25 persons interested in the litigation. But later on the applicant stated to the Court that only two persons who are shown as non-applicants in the case, viz., the plaintiff and an assignee of his interest, were required as parties to these applications for revision while all others were not necessary. As the applicant applied for striking them out as parties the Court permitted him to do so, and all the persons except the two mentioned above were struck off from the list of non-applicants. On behalf of the non-applicants a preliminary objection is raised that these applications for revision are not tenable in view of the fact that all the necessary parties have not been placed before the Court. On behalf of the applicant, it is contended that they are not necessary parties though they may be proper parties to the case. I have heard the application for revision on merits, and in the view that I take of the case on merits I do not think it is necessary for me to decide this preliminary objection at great length. I only express my opinion that it was desirable to have all parties before this Court to avoid contradictory orders.

(2.) THE first contention raised is about the court-fee on the plaint; and the question is whether the suit falls under Section 7(v)(b) or Section 7(v)(c), Court-fees Act. The plaintiff's suit is one for partition and separate possession of his interest in an izara village in Berar. To such a suit he joined all the co sharers of the village as parties as he wanted partition and separate possession of his share in the village. In the body of the plaint, it was stated that Girdharilal Baldeodas Marwadi was an auction purchaser of 7 fields that belonged to the share of the plaintiff, but that though he purchased only the 7 fields without the village share he got it mentioned in the sale certificate and the receipt for possession that he had taken possession of the 7 fields along with the village share. This was characterized as fraudulent and as not conveying property in the village share to the said Girdharilal. The plaintiff therefor claimed that he was still the owner of the village share, which was not sold, and claimed partition thereof. The suit was valued at 7 1/2 times the Government assessment on this village share for purposes of court-fee and a 12 1/2 times the assessment for purposes of jurisdiction. Some of the defendants including the applicant contended that the plaint had not been properly valued for purposes of court-fee and jurisdiction, and that it had been valued as if the suit fell under Section 7(v)(b), Court fees Act, though as a matter of fact it fell under Section 7(v)(c) of that Act. Under Section 7(v)(c) an inquiry has to be made regarding the net profits that have arisen from the land one year prior to the suit and then the amount on which the court fee has to be paid will have to be calculated. But in order to bring the case Under Clause (c) of Section 7(v) it has to be shown by the persons raising the contention that this is a case of a suit for possession of land that has been exempted from land revenue wholly or partially or is charged with any fixed payment in lieu of such revenue.

(3.) BUT in the very next sentence the author says: At the present day the tenure has ceased to exist and the lands are perfectly heritable and transferable property as any other property in land.