Jogendra Narain Singh and Another vs Radha Prosad Singh and Another

Kulwant Sahay, J.—This is an application on behalf of the plaintiffs against the decision of the Subordinate Judge of Deoghar deciding three preliminary issues raised in the suit. These were issues 1, 2 and 3 and they are in the following terms: "(1) Is the court-fees paid sufficient ? (2) Has the suit been properly valued ? (3) Is the suit maintainable in this Court ?"

He an swered the first two issues against the plaintiffs and issue 3 in favour of the plaintiffs. As regards the first two issues he found that the suit ought to be valued at Rs. 51,040 and ad valorem court-fees should be paid upon this sum amounting to Rs. 1,785-8-0: The plaintiffs had paid a court-fee of Rs. 105 only and therefore it was declared that they were liable to pay a further sum of Rs. 1,680-8-0. By an order in the order-sheet dated 8th October 1931 the plaintiffs were allowed time till 16th November to pay the deficit court-fee of Rs. 1,680-8-0. The plaintiffs took time on 16th November and again on 16th December from the Subordinate Judge to pay the deficit court-fee. They filed the present application in this Court on 6th January 1932, challenging the correctness of the decision of the Subordinate Judge on the first two issues. The suit was for a declaration that plaintiff 1 was the ghatwal of the Kunjora ghatwali which is one of the Birbhum ghatwalis and is governed by Regn. 29 of 1814. Plaintiff 1 was dismissed from the office of ghatwal by an order of the Commissioner of Bhagalpur dated 15th March 1930, the dismissal taking effect from 1st April following, and defendant 1 was appointed ghatwal in his place. Plaintiff 2 is the son of plaintiff 1 and their case is that the office of ghatwal in this ghatwali descends from father to son and that no third person can be appointed. Plaintiff 1 alleged that his dismissal was unlawful. He then stated that if he could not be retained in the office of ghatwal then his son plaintiff 2 ought to be appointed and not defendant 1. Defendant 2 is the Secretary of State for India in Council.

The reliefs asked for in the plaint are these:

(1) That it be declared that Kunjora is a ghatwali tenure which the holder thereof is entitled to hold generation after generation in perpetuity subject to the payment of the fixed and established rent and the performance of certain duties for the maintenance of the public peace and support of the police, (2) That it be declared that the plaintiff first party as the ghatwal of the said ghatwali tenure and his descendants in perpetuity are entitled to be maintained in possession of the said tenure and of the lands comprised therein as long as they pay the revenue assessed upon it. (3) That it be declared that the dismissal of the plaintiff first party from his office of ghatwal is improper, illegal and ultra vires. (4) That it be declared that assuming that the plaintiff first party was liable to dismissal for any just cause, the plaintiff second party as his descendant was in law entitled to and eligible for appointment of the office of ghatwal in his place and that the appointment of the defendant first party is inequitable, illegal, contrary to law and without jurisdiction. (5) That it be declared that the possession of the defendant first party over the ghatwali of Kunjora is wrongful and that the plaintiff first party or the plaintiff second party is entitled to possession. (6) That the plaintiff 1st party or the plaintiff second party as to the Court may seem fit and proper be put in possession of the said ghatwali Kunjora and. mesne profits be awarded to either of them from the date of the suit till recovery of possession, (7) That costs of the suit with interest thereon be awarded to the plaintiffs or to whichever of them may seam entitled thereto. (8) That further and other reliefs be granted to the plaintiffs or to either of them as in the circumstances of the case they may seem to be entitled thereto.

In para. 17 of the plaint the cause of action for the suit was stated to have arisen on 1st April 1930 the date of dismissal of the plaintiff first party and on 3rd September 1930, the date on which the defendant first party was put into possession, In para. 18 of the plaint it was stated that the said ghatwali the subject-matter of the suit is valued approximately at Rs. 30,000 and court-fee was paid on Rs. 1,100 which was ten times the revenue payable in respect of the ghatwali in view of the prayer for possession and a further court-fee of Rs. 15 was paid in view of the declaratory relief claimed in the suit. The learned Subordinate Judge has found that the suit had not been correctly valued. He took the income of the ghatwali tenure to be Rs. 4,491-12-0 as appearing in the settlement papers filed on behalf of the defendants. From this amount he deducted Rs. 107-11-9 on account of revenue, Rs. 391 as chaukidari tax, Rupees 140 as road cess, Rs. 450 as collection charges at 10 per cent on the net annual income, and the balance left was Rupees 3,402-10-41/2. Having regard to the restrictions imposed on the ghatwali tenures as regards alienations he calculated the valuation at 15 times the net annual income and this gave the valuation of Rs. 51,040 upon which he has calculated the ad valorem court-fee.

The first point taken by Mr. Abani Bhusan Mukharji on behalf of the plaintiffs that the present suit came within Schedule 2, Article 17, Clause (6), Court-fees Act, his contention being that the suit was such that it was not possible to estimate at a money value the subject-matter in dispute. His contention was that the suit was in fact a suit for a declaration that the plaintiff was entitled to the office of ghatwali and for an order that plaintiff 1 may be reinstated to his office or that plaintiff 2 may be appointed to that office and that no estimate can be formed as regards the money value of such a subject-matter in dispute between parties. This contention however cannot be accepted in view of the plaintiff''s own statement contained in para. 18 of the plaint where he did estimate the value of the suit at Rs. 30,000 and he did pay a Court-fee on Rs. 1,100 which was ten times the revenue payable in respect of the ghatwali property. It is clear therefore that the case does not fall within Article 17, Clause (6), Schedule 2 to the Court-fees Act. It is next contended that assuming that the subject-matter of the suit is capable of valuation then the correct procedure ought to be to accept the valuation as given by the plaintiff. Mr. Abani Bhusan Mukharji however concedes that the valuation cannot be accepted if it appears on the face of it not to be a reasonable valuation.

The learned Subordinate Judge has held that the case falls within Section 7, Clause (5), Sub Clause (d), Court-fees Act. The Kunjora ghatwali is a part of an estate paying revenue to Government but it is not a definite share of such an estate and is not separately assessed to Government revenue, and therefore the court-fee has to be calculated on the market value of the land. He is supported in his decision by Chandra Narayan Singh Vs. Asutosh De, in which a similar question arose with respect to the Rohini ghatwali which is also one of the Birbhum ghatwalis. It was held there that the proper court-fee payable on a suit like the one now before us is under Sub-Clause (d), Clause (5), Section 7, Court-fees Act. The question then remains what is the market value of the property the subject-matter in dispute. It cannot be said that it has no value inasmuch as the plaintiffs themselves described it as a tenure. The settlement papers show that the income to the ghatwali from this ghatwali is as stated by the Subordinate Judge. The learned Subordinate Judge has calculated the value after deducting the various charges from the income at 15 times the net annual income. It cannot be said that that is not a fair estimate of the value of the subject-matter in dispute in the present case. I am therefore of opinion that the valuation as fixed by the Subordinate Judge is correct.

An objection was taken on behalf of the defendants that an application in revision does not lie against a decision on one of the preliminary issues raised in the suit. The decisions on this point of this Court are not uniform. In one of the latest decisions of this Court in Sham Narain Singh Vs. Basudeo Prasad Singh, it was held that the High Court will not interfere in revision with an interlocutory order deciding an issue as to court-fees and demanding additional court-fee from the plaintiff as he has another remedy open to him by way of appeal against the subsequent order rejecting his claim.

I am inclined to think that this is the correct view to take on the point and I am of opinion that a revisional application against the decision of the Subordinate Judge deciding an issue as regards court-fee does not lie to this Court. On both these grounds therefore this application must be dismissed. The opposite party are entitled to their costs: hearing fee two gold mohurs to the defendants first party and two gold mohurs to the defendant second party.