Bharat Nath Mitra vs Sashi Bhusan Bera

Renupada Mukhkrjee, J.—This Rule was obtained by the Plaintiff, of a title suit under the following circumstances. He instituted a suit for recovery of khas possession of some lands described in the schedule of the plaint on the allegation that the lands were formerly held by one Aswini Kumar Bose as a tenant under the tour of the Plaintiff at an annual rental of Rs. 11-1-6 and that the tenant having abandoned the holding without making any arrangement for payment, the Plaintiff had become untitled to get khas possession thereof. Accordingly, the Plaintiff claims khas possession of the disputed lands. The suit was valued at Rs. 185-10 both for the purposes of valuation of the suit and for the purpose of payment of court-fees and, accordingly, court-fees were paid upon the plaint upon a valuation of Rs. 185-10. It appears that an objection as to the sufficiency of the court-fees paid upon the plaint was taken by the Defendants and an issue to that effect was framed. This issue was tried by the learned Munsif, first court, Howrah, before whom the suit was pending as a preliminary issue and the learned Munsif came to the finding that the court-fees should have been paid upon the market value of the suit properties and the learned Munsif made an order that there should be an enquiry u/s 8C of the Court-fees Act for ascertaining the market value of the disputed properties. Against this order the Plaintiff of the trial court has come up in revision.

Mr. Banerjee, appearing on behalf of the Plaintiff, contended that the learned Munsif acted without jurisdiction by directing an enquiry u/s 8C of the Court-fees Act in as much as the suit is a suit for recovery of khas possession of the disputed lands, and there being no prayer for declaration of Plaintiff''s title to the disputed lands, the suit is governed by Section 7(v)(c) of the Court-fees Act which prescribes payment of court-fees upon 15 times the net profits which have arisen from the lands during the year next before the date of presenting the plaint. Mr. Banerjee contended that the profits which the Plaintiff derived from the lands were calculated on rental basis at Rs. 11-1-6 per annum. He, therefore, argued that the Plaintiff was justified in paying court-fees upon 15 times the annual rent of the disputed lands. Upon calculation, however, I find that 15 times of Rs. 11-1-6 do not make up the sum of Rs. 185-10. Mr. Banerjee, however, satisfied me after showing the record-of-rights that the amount entered therein as rent is Rs. 12 and an amount of 6 annas has been recorded as cesses. So the Plaintiff paid court-fees upon 15 times of Rs. 12-6. As the prayer for declaration of Plaintiff''s title to the disputed lands is conspicuous by its absence, the suit cannot be governed by Section 7(iv)(c) of the Court-fees Act, and the Plaintiff cannot be directed to pay court-fees on the amount at which the relief sought is valued by him.

Apparently, when the learned Munsif directed an enquiry to be made about the market value of the lands u/s 8C of the Court-fees Act, he had in his contemplation Section 7(iv)(c) of the Court-fees Act. In my judgment this was a misconception of the scope of the suit on the part of the learned Munsif.

In this connection Mr. Banerjee on behalf of the Petitioner drew my attention to a case reported in Hafiz Md. Fateh Nasib, Mutwali v. Haji Abdur Rub and Ors. (1953) 57 C.W.N. 820 wherein it has been held that a suit by a Plaintiff for recovery of certain properties as Mutwali in which there was no prayer for declaration of title (such prayer being not necessary on the facts stated in the plaint) is governed by Section 7(v) of the Court-fees Act. The present case is concluded by the authority of the case cited above. As there is simply a prayer for recovery of khas possession of the disputed lands in the plaint and as there is no prayer for declaration of Plaintiff''s title to the Same, the Plaintiff can only be directed to pay court-fees upon 15 times the nett profits of the lands u/s 7(v)(c) of the Court-fees Act and no more. It cannot be disputed that, in the present case, the nett profits which accrued to the Plaintiff were the rents which he received from the tenant who is said to have abandoned the holding. That being the case, the Plaintiff has, in my judgment, paid appropriate court-fees and the order for enquiry as to the market value of the lands u/s 8C of the Court-fees Act passed by the learned Munsif is without jurisdiction.

As notice of the Rule was served on the Senior Government Pleader, Mr. Das appeared on behalf of the State and made some submission. He contended that the suit as framed without a prayer for declaration of title is not maintainable and so the Plaintiff may be directed to make the suit maintainable by amending the plaint in a proper manner and thereafter the Plaintiff may be directed to pay appropriate court-fees upon the amended plaint. In my judgment, the contention urged by the learned Senior Government Pleader cannot be accepted. It is the concern of the Plaintiff to make his suit maintainable. If the Plaintiff deliberately chooses not to make any prayer for declaration of his title to the disputed lands and if he remains content with making simply a prayer for recovery of khas possession, the suit will proceed at the risk of the Plaintiff. At the present stage it is not necessary for me to make any observation, nor am I, in fact, making any observation as to whether the suit as framed is maintainable. Court-fees should be levied upon plaint as framed by the Plaintiff and not upon the plaint as it should have been framed in the opinion of either the Defendant or the Government.

In the result, the Rule must be made absolute. The Rule is, accordingly, made absolute and the order complained of is hereby set aside. The court-fees paid upon the plaint are accepted as sufficient. The learned Munsif will now proceed with the trial of the suit in accordance with law.

Let the records be sent down to the trial court at an early date.

In the circumstances of the case, I do not make any order as to costs.