BHAGWAN APPA WANI Vs. SHIVALLA WANI

JUDGEMENT

(1.) ONLY a question of Court-fees is involved in this case, the pertinent facts of which are sufficiently clear from the order of the Additional District Judge. I have been asked by the pleader for the plaintiff-applicant to hold that the principle laid down by Baker, J.C., in Bhaddoo v. Saddoo A.I.R. 1924 Nag. 86 is incorrect, and in this connexion reliance has been placed on the decision of Kinkhede, A.J.C., in Manaji v. Sitaram A.I.R. 1924 Nag. 105.

(2.) IT is so far true that the correct method of computation of Court-fees in suits where partition is claimed by a coparcener, who is in joint enjoyment of part of the property at the date of the suit, is to determine whether merely a change in the mode of possession is asked for or whether, in reality, the relief of ejectment is claimed. To arrive at a conclusion on such point, one has, however, to look beneath the mere form and verbiage of the plaint and to arrive at what is its real substance. The present plaint is no doubt framed in a mode intended to suggest that both the plaintiff and defendant clearly are in possession of part of the joint property and that merely a change of the mode of enjoyment is desired. If, however, as in . my opinion we must do in a case like the present, we have regard to the pleadings on record, it is perfectly clear that in the present case the suit is nothing more or less than one to enforce a right of share in any property on the ground that it is joint family property. From paragraph 5 of the written statement filed by the defendant on 17-4-1926, it is perfectly clear that the plaintiff must have been well aware that his allegation to the effect that he was a coparcener in the property held by the defendant had already been denied by defendant in a previous suit, and this point was found against the present plaintiff-appellant in that suit. In those circumstances, even if the plaintiff has chosen to ignore a patent fact like the above and to frame his suit in a manner which, on a superficial view, suggests that he is merely claiming a right to a different mode of enjoyment of the property, the Court, in my opinion, must have regard to what is, in effect, the real substance contained in the plaint as compared with the mere impression one might derive on a superficial view from the language used therein.

(3.) THERE seems to be no reason to remand the case for a preliminary finding as to whether the position of the plaintiff or the defendant as regards the property in suit is correct or not. In paragraph 12 of the plaint it is admitted that the defendant refused the demand for partition of the property and it is equally clear from the defendant's written statement that the plaintiff's title thereto has already been adjudicated upon in a previous suit, the point being decided against him. The pleas offered by the defendant, which are on record, clearly make it possible to arrive at the right conclusion as to what is the real nature of the suit and, in my opinion, the Additional District Judge was, in those circumstances, correct in applying the decision in Bhaddoo v. Saddoo A.I.R. 1924 Nag. 86. I see no reason to doubt the soundness of that decision and in those circumstances it becomes unnecessary for me to discuss in detail the unreported decision of Kinkhede, A.J.C., quoted above.