Mangal Mishra and Others vs Ramjash Mishra and Others

H.L. Agrawal, J.—This application in revision u/s 115 of the CPC by the plaintiff''s arises out of an order dated 2nd July, 1971 passed by the learned Subordinate Judge asking them to pay ad-valorem court fee on the plaint. The plaintiff''s instituted Partition Suit No. 54 of 1966 in the Court of the Second Subordinate Judge, Chapra. In the plaint, it is alleged that the plaintiff''s and the defendants first party are descendants of one Ramchilal Missir and that there has been no previous partition between them by meets and bounds, but the parties are in separate cultivating possession of different portions of the lands for the sake of convenience.

From the written statement filed by the contesting defendants as well as the statements made in the plaint. It appears that both the parties have deal with the joint family properties on various occasions by registered sale deeds. The purchasers under the sale deeds have been imp leaded as defendants-some originally and some subsequently on filing of the written statement. In the plaint, however, there is no challenge to any of the transactions. In paragraph 9 of his order, the learned Subordinate Judge has clearly stated that the plaintiff''s do not challenge the genuineness of the sale deeds even impliedly and no relief is sought for regarding the genuineness or otherwise of the transfers made by the parties. The plaintiff''s have not attempted to displace the title of the vendee under the various documents.

Having heard Mr. S.C. Ghose, appearing for the petitioners and Mr. Janardan Prasad Sinha for some of the opposite parties, I am of the opinion that simply because some of the vendees were added as parties to the suit, the nature of the suit did not (sic) in giving the reliefs claimed by (sic) (sic) the validity of the transfers under the various sale deeds are not at all to be considered, and as such only the fixed court-fee under Article 17(VI) of Schedule II of the Court fees Act is payable on the plaint. The other ground given by the learned Subordinate Judge that the question regarding the daughter ship of Mossamat Daulatia will have to be gone into and the parties will have to lead evidence in accordance with their case, in my opinion, will be only incidental and of no consequence on the question of payment of court-fee. I am satisfied that the order of the learned Subordinate Judge can not be sustained and he has committed an error of jurisdiction in asking the plaintiff''s to pay ad-valorem court-fee. The order demanding ad-valorem court-fee is, accordingly set aside and it is held that the court-fee already paid on the plaint is sufficient. In the result, this application succeeds; but in the circumstances of the present case, I shall make no order as to costs.