HALADHAR PAL CHOUDHURY Vs. SHEIKH MONGAL RAJA

JUDGEMENT

(1.) The facts relating to the suit in the appeal wherein this question of court-fees has arisen have been set out in full in the reference made by the Registrar under Section 5, Court-fees Act. For the purpose of the present reference it will be enough to state that the plaintiff instituted a suit against three persons of whom defendants 1 and 2 were alleged to be the persons in possession and defendant 3 was the admitted landlord. The plaintiff asked for declaration of title and recovery of possession on the allegation that he had got settlement from defendant 3 but that subsequently defendants 1 and 2 dispossessed him at the instigation of the said defendant. The title that he set up was the jote right to-the land in suit. The decree that was-passed by the trial Court was as against, defendants 2 and 3. That Court dismissed the suit as against defendant 1 holding that by reason of the death of that defendant the suit had abated in so far as it was against him. The decree was. in these words: Plaintiff's jote right to the lands mentioned in the schedule to the plaint is hereby declared-and he do get khas possession thereof.

(2.) From this decree defendant 3 preferred an appeal but the appeal was dismissed and the decree of the trial Court was affirmed. The said defendant has then preferred this second appeal. The suit was valued in the trial Court at Rs. 800 said to be the market value of the property and was instituted on a court-fee of Rs. 90. Defendant 3 preferred his appeal to the lower appellate Court from the decree of the trial Court valuing the appeal at Rs. 800, that is to say, the market value of the property and on a court-fee of Rs. 90. In this Court however he has preferred the appeal on a court-fee of Rs. 20. The question that arises upon this reference is whether this court-fee is sufficient.

(3.) The learned advocate who has appeared on behalf of the appellant before me has stated that the decree, such as it is does not really affect his client, but his client has been obliged to prefer this appeal by reason of the fact that there was an order for costs against him. His case is that, inasmuch as an appeal from an order for costs only would not be competent, he is obliged to ask for some other relief, and that it would be enough for him to have a declaration to the effect-that the plaintiff's title is not proved, that is to say, that his jote right to the land has not been established. He says that he is not concerned at all with the question of possession because of two reasons: Firstly for the reason that defendant 3 is not entitled to possession inasmuch as possession would be with the other defendants, defendant 3 being only a landlord; and secondly, for the reason that the suit; as against defendant 1, having been dismissed the plaintiff cannot very well-get possession even as against defendant 2. In support of this last mentioned contention he has relied upon the decision of this Court in the case of Arunadoya Chakravarty V/s. Mahammad Ali .