AMBALAM S VAIYAPURI CHETTI Vs. PKRAMACHANDRA THEVAR BY HIS AUTHORIZED AGENT AND MANAGER VKALYANA SUNDARAM PILLAI

JUDGEMENT

(1.) This is an application to revise the order of the District Judge of Ramnad setting aside the order of the District Munsif of Satur. The petitioner's contention is that the District Judge's order is wrong and is opposed to the provisions of the Court Fees Act Section 7 Clause iv(c). The plaintiff sues for injunction to restrain the defendants from putting up a fence on the ground that the property is his and that the defendants have no right to it. The defendants contend that it is communal property and is not the exclusive property of the plaintiff. The suit is valued at Rs. 250 for purposes of jurisdiction and for purposes of Court-fee and the relief of mandatory injunction is valued at Rs. 50. The Court-fee of Rs. 22-7-0 was paid on Rs. 200 half of Rs. 400 being the estimated value of the plaint land. The District Munsif held that the property was worth more than Rs. 30,000 and returned the plaint for presentation to the proper Court, with the proper Court-fee affixed to it. On appeal the District Judge held that the plaint was properly valued set aside the order Of the District Munsif and remanded the suit for trial on the merits. It is contended before me that the suit is one for declaration and injunction coming within Section 7 Clause iv(c) of the Court Fees Act. The plaint as drafted is for declaration as well as for injunction and the prayers in the plaint are for the declaration of the plaintiff's title and for a perpetual injunction against the defendants. The plaint, therefore, is one which ought to be valued and Court fee paid as is required by Section 7 Clause iv of the Court Fees Act. The proviso to the Clause (c) is "that in suits coming under Clause (c) in cases where the relief sought is with reference to any immoveable property, such valuation shall not be less than half the value of the immoveable property calculated in the manner provided for by para. 5 of the section." The injunction is as regards immoveable property and, therefore, the provision applies to this case. The-contention of Mr. Rajah Iyer is that the question of title is only incidentally raised and his main prayer is for injunction and that the prayer for declaration is not a necessary one. But seeing that the defendant raised the question of title in this case and as it would be necessary for the Court to decide the question of title before considering the question of the issue of injunction I think the contention of Mr. Rajah Iyer is untenable.

(2.) It is unnecessary in cases of this kind to have the whole of the property valued. It is sufficient if only such portion of the property as is the subject-matter of dispute is valued. If the defendant claims to have a right to the whole of the property, then, no doubt the whole of the property will have to be valued and the Court-fee paid, on half its value. I set aside the order of the District Judge and restore that of the District Munsif. But in doing so I direct the Court, to which the plaint will be presented, to give the plaintiff an opportunity of saying what portion of the property is in dispute and to allow him to pay the Court-fee on half the value of the property that is likely to be in d But if the whole of the property is to be in dispute then the Court-fee will to be paid on half the value of the property.

(3.) I allow this petition with costs in this and in the lower Appellate Court.