RAMDEO SINGH Vs. RAJ NARAIN SINGH

JUDGEMENT

(1.) On 30 April 1948, the learned Chief Justice and Das J. passed the following order making the reference to the Pull Bench: We consider that the derisions referred to in the order of <JGN>Sinha</JGN> and Mahabir Prasad JJ. in Fiist Appeal No. 64 of 1948 require reconsideration. The matter will be laid before a Full Bench on Monday.

(2.) The question referred to the Full Bench is: When an appeal heard by the Court below is found to be one which that Court had no jurisdiction to hear, and a second appeal is preferred to the Hon ble Court, is it permissible to treat that appeal as a first appeal and to credit the appellant with the court-fees paid on the memorandum of appeal in the Court below?

(3.) It is necessary to state certain facts out of whioh this appeal arises in order to bring out the circumstances leading up to this reference. The plaintiff-respondent instituted a suit in the Court of the Subordinate Judge at Patna (1) for a declaration that the sale-deed admittedly executed by him in favour of the contesting defendants-first-party was false and fraudulent, and, therefore void and inoperative, (2) for confirmation, or, in the alternative, recovery of possession, and (3) for an injunction, restraining the defendants from taking delivery of the sale-deed from the registration office. The plaintiff alleged that there was an agreement between him and the contesting defendants for the sale of small property for, Rs. 300 but instead the defendants fraudulently got the plaintiff to put his signature to a document which was ultimately registered in which false entries were made as regards the consideration money and the properties to be sold. The sale-deed contained the false recital that all the properties belonging to the plaintiff, namely, some milkiat interests as also more than nine acres of kasht lands and his residential house, had been sold to the defendants for the sum of four thousand rupees. He also alleged that the details and the manner of the receipt of consideration money as given in the sale-deed were also false and fraudulent. The plaintiff further alleged in para. 11 (2) of the plaint that according to the prevailing price the fair price of the properties in Schedule 2 of the plaint--the properties a specified is the false sale-deed in dispute--would not be less than Rs. 15,000 but the defendants have mentioned the price thereof as Rs, 4000 to the sale-deed," But the plaintiff valued his plaint for the purposes of jurisdiction and court-fees at Rs. 4000 only on the basis that Rs. 4000 was, on the face of the document impugned, the value of the pro-parties in suit.