MT RASHIDA KHATUN Vs. MTFAIYAZ BIBI

JUDGEMENT

(1.) THIS is a reference by the Taxing Officer of a question as to what is the correct court-fee to be paid by the appellants on F. A. No. 366 of 1932. The appellants are defendants. The plaintiff brought a suit asking for separate possession of a certain share, 10-45 sehams of the property in dispute by partition. The defendant claimed to be in possession of the property as mutawalli under a wakfnama. The trial Court found that the alleged wakf was not valid and grant-ed a decree to the plaintiff for separate possession. The appellant in appeal asks that that decree should be set aside. He claims that it will be sufficient if he gets a declaration that the wakf is valid. The relief however in his appeal is that the decree of the Court below should be set aside and the plaintiff's suit should be dismissed. The appellant therefore is in the position of a defendant against whom a decree for possession has been granted and he asks that that decree for possession should be set aside. THIS is an extremely common case and there are thousands of appeals of this nature filed in this Court. Learned Counsel is not able to show that any one of these appeals has ever been admitted on a declaratory court-fee. He is only able to refer to two rulings; one was reported in Bishan Sarup V/s. Musa Mal 1935 ALJ 869 which has no bearing on the present case as it was not a case where there was a decree for possession. In Jyoti Prasad Singha Deo V/s. Jogendra Ram Ray 1928 56 Cal 188 there was a partition case. But that is not the same as the present case because in the present case the defendant claims that he as mutawalli is entitled to the sole possession of the property. There is therefore no authority for the proposition advanced for the appellant. The case appears to me to come within the court-fees Act, Schedule 1, Art. 1 which states that for a plaint, memorandum of appeal not otherwise provided for in the Act, etc., there shall be an ad valorem court-fee. If the decree of the lower Court is not set aside, the defendants, although at present in possession, will lose that possession. It appears to me therefore that the defendants should come under this Art. as persons who claim that they should have possession. I agree with the learned Taxing Officer and I hold that the appellant must pay an ad valorem court-fee. A further question was raised by Mr. Aziz to the effect that although he had valued his appeal at Rs. 50,000 he now desired orally to have that amount reduced. I do not consider that this is a matter with which I can deal as it does not come within the reference. Let the reference be returned. No one appears for the opposite party; so I make no order as to costs.