BOHRA TULA RAM Vs. BOHRA DWARKA DAS

JUDGEMENT

(1.) This is a reference by the taxing officer for a decision as to the proper Court- fee to be paid in a suit out of which has arisen F.A. No. 322 of 1925. According to the plaint the plaintiff and his nephew were coparceners in respect of certain property. On 15 September 1913 the nephew, Roshan Lal, executed a usufructuary mortgage in favour of defendant 1. On the death of Roshan Lal, some eight or nine months later, the mortgagee brought a suit for foreclosurs against Mt. Kausilya, widow of Roshan Lal, and got a decree. The plaintiff asks for a declaration that the mortgage-deed was void and ineffectual as Roshan Lal had no right to transfer the family property. There is no statement in the plaint whether Roshan Lal was the manager or not of the family. The second relief claimed possession of the property.

(2.) Now in a suit for possession it is not necessary for the plaintiff to sue for a declaration as to his title. At any rate in a suit of this nature for possession it is not necessary for him to do so. The plaintiff's counsel consequently maintains that the Court-fee should be valued merely as a suit for possession. In support of this contention he invokes a Full Bench decision of the Patna High Court, Ram Sumran V/s. Gobind Das A.I.R. 1922 Pat. 615. That decision is not, in my opinion, applicable to the present case. In that case, although the plaintiff asked for an adjudication upon his title, he did not include amongst the reliefs claimed a prayer for a declaration as to his legal character or as to the invalidity of a certain transfer. Next I am referred to a single Judge decision of this Court: Tika Ram V/s. Salig Ram [1920] 18 A.L.J. 903. In that case the plaintiff did ask for a declaration as one of the reliefs which he claimed. It was held by Mr. Justice Tudball, that as it was unnecessary for the plaintiffs to ask for a declaration the suit should have been treated as an ordinary suit for possession of property. The learned Judge invoked the fact that suits of this nature are very common and they have always been treated as ordinary suits for possession of property and Court-fee is paid on five times the Government revenue.

(3.) On the other hand I have been referred to a single Judge decision of this Court Gangadei V/s. Sukhdeo Prashad A.I.R. 1924 All. 612, In that case Mr. Daniels, J., stated as follows: Now the suit as framed is clearly one for a declaration with consequential relief. It is, therefore, beside the mark to suggest that the suit might have been framed so as to ask for different reliefs, or, in other words, that it might have been framed purely as a suit for possession. The plaintiff has to pay Court-fee on the relief which she seeks to obtain by the suit.