GOVINDA KUMAR SUR Vs. MOHINI MOHAN SEN

JUDGEMENT

(1.) This is an action in ejectment by the plaintiff-appellants after service of notice to quit on the tenant-defendants. The case is that defendants 1 to 3 were holding under the plaintiff's as monthly tenants-at-will a building in the town of Dacca, described in the plaint. Defendant 4 was a sub-tenant under the tenant-defendants. The plaintiffs served a notice to quit upon them but the tenant-defendants refused to vacate and hence the present suit. The suit was valued at Rs. 456 being the twelve months rent payable by the tenant defendants at the rate of Rs. 38 a month. It was tried by the Munsif and decreed in favour of the plaintiffs. Defendants 1 to 3 appealed and an application was made before the Subordinate Judge who heard the appeal to formulate an issue and to try it as a preliminary issue regarding the valuation of the suit and the jurisdiction of the Munsif in the trial Court. The learned Subordinate Judge gave effect to this plea in bar and held that the suit was undervalued, that it should have been valued according to the market value of the property in suit and that it was possible that on a proper valuation of the property in suit the Munsif would have had no jurisdiction to try it. In this view lie remanded the case to the trial Court for determination of the allied questions of valuation and jurisdiction.

(2.) The plaintiffs have appealed and it is argued on their behalf that the view of the law taken by the learned Subordinate Judge as regards the valuation of the suit is wrong. Objections are also raised with regard to the legality of the order of remand and the propriety of the objection as to the valuation and jurisdiction taken at the appellate stage of the suit. It is not necessary to consider the other objections as in my judgment the appeal succeeds on the main question, in the case relating to valuation and jurisdiction.

(3.) The learned Subordinate Judge has held that in a suit as the present it is necessary that the suit should be valued1 according to the market price of the property, his reasons being that as soon as the notice to quit was served upon the tenants, the tenancy was determined and the tenants became trespassers; and the suit against trespassers should bear ad valorem fees under Section 7, Clause 5, Court-fees Act. It is contended on behalf of the appellants that the valuation put by them is correct under Section 7, Clause 11(cc).