Taramoni Chakraborty vs Md. Ali Halder

Chittatosh Mookerjee, J.—Md. Ali Haidar, who is the opposite party No. 1 to this Rule as Mutwalli to the estate of Haji Karim Buksh, has instituted a suit against the present Petitioners and others in the First Court of Munsif at Sealdah, inter alia, for a declaration that the suit property described in schedule ''A'' to the plaint is a wakf property appertaining to the estate of Haji Karim Buksh and that r, he was the Mutwalli of the said wakf estate and for further declaration that the Defendant No. 1 had no right or authority to transfer or alienate the said property and that the alleged deed of sale executed and registered on April 19, 1967, by the Defendant No. 1 in favour of the Defendants Nos. 2 to 4 and also the alleged deed of sale dated April 19, 1967, were all illegal, fraudulent, void ab initio and nullity and the Defendant Nos. 2 to 4 had acquired no title in schedule ''A'' property. He has also prayed for recovery of possession of schedule ''A'' against the Defendants Nos. 2 to 5. In the said suits the opposite party No. 1 has also prayed for declaration that the Defendant Nos. 6 and 7 are monthly tenants in respect of ''B'' and ''C scheduled properties and for recovery of possession of the ''B'' and ''C scheduled properties through the Defendants Nos. 6 and 7, for permanent injunction and for mesne profits. Schedule ''A'' property consists of premises No. 46, Simla Road, within the Corporation of Calcutta comprising 2 cottahs, 12 chittaks and 8 sq.ft. of land with a two-storeyed building having eight bed-rooms, staircase room, kitchen, privy, water-taps etc. Schedules ''B'' and ''C are parts of the said schedule ''A'' property. The suit has been valued at Rs. 5,000 and ad valorem court-fees have been paid thereon.

The learned Munsif, First Court, Sealdah, by his order No. 30 dated July 18, 1975, held that the suit has been properly valued and has answered the said issue regarding valuation in the affirmative. According to the learned Munsif the suit property is a wakf property and the suit has been brought by the Plaintiff as a Mutwalli. The learned Munsif is of the opinion that there was no objective standard for ascertaining the value of the property by the Plaintiff as a Mutwalli and the valuation given by the Plaintiff should be accepted. The learned Munsif, in this connection, has relied on the decision in Hafiz Md. Fateh Nasib Vs. Haji Abdur Rub and Others, . The contesting Defendants have obtained this Rule against the aforesaid order.

The Plaintiff in his plaint did not categorically avert whether court-fees have been paid under Clause (iv)(b) or under Clause (v) of Section 7 of the West Bengal Court Fees Act (X of 1970). But the averments made in para. 25 of the plaint may go to vindicate that the court-fees have been paid according to Section 7(iv)(b) of the Act. It may be noted that at one stage of the argument Mr. Chabraborty appearing on behalf of the opposite party No. 1 tried to contend before me that the instant suit might be considered as one for possession of land and building within the meaning of Clause (v). In case it is held that the aforesaid suit is for obtaining declaratory decree and for a consequential relief u/s 7(iv)(a) of the West Bengal Court Fees Act (X of 1970) then the amount of fee payable by the Plaintiff opposite party No. 1 should be, therefore, computed according to the amount at which the reliefs sought to have been valued in the plaint subject to the provisions of Section 11 of the said Act.

Independently of Section 11, the Court undoubtedly possesses power to hold enquiry as to valuation of suits and in case the Court forms the opinion that the subject-matter of any suit has been wrongly valued, it may revise the valuation put by the Plaintiff and determine the valuation and the correct court-fees payable. Even in the absence of Rules framed u/s 9 of the Suits Valuation Act, the Court has the power to correct valuation put by the Plaintiff on his plaint in a suit u/s 7(iv), Clause (b) of the Court Fees Act, 1970, (corresponding to Section 7(iv)(c) of the Court Fees Act, 1870) where the valuation is palpably absurd, manifestly illogical or arithmetically wrong (vide the Full Bench decision of this Court in Narayanganj Central Co-operative Sale and Supply Society Ltd. v. Moulvi Mafizuddin ILR 61 Cal. 796 : (1934) 38 C.W.N. 589. See also Shaista Banu v. Faizunnessa 68 C.L.J. 144 (F.B.).

The learned Munsif, in the instant case, has failed to exercise his jurisdiction by declining to consider at all whether the valuation given in the plaint was reasonable and logical. One of the consequential prayers in the plaint is for recovery of possession of schedule ''A'' property situated within the Corporation of Calcutta and comprising land and building. The learned Munsif in the exercise of his jurisdiction should have considered whether the relief for recovery of possession of the suit property has been correctly valued or not. Alternatively, if Section 7(iv) applies then the Court below should have held an enquiry to ascertain the market value of the alleged wakf property.

The decision of Lahiri and Guha Ray JJ. in Hafiz Md. Fateh Nasib v. Haji Abdur Rub Supra has been relied upon by the learned Munsif. The said case arose out of a suit containing only prayer for recovery of possession and according to the Division Bench, the case did not come u/s 7(iv)(c) but u/s 7(v) of the Court Fees Act, 1870. Paragraph 5 of the judgment in Hafiz Md. Fateh Nasib''s case indicate that the main question before the Division Bench was whether the learned Subordinate Judge was right in directing the Plaintiff to pay court-fees upon Rs. 40,000 which was computed as the value of the suit property treating them as secular properties. The Division Bench held that the Subordinate Judge was wrong in finding that the value of the properties as secular properties will be same as their value if they were treated as wakf properties. The Division Bench declined to remand the case for fresh determination of the valuation of the properties treating them as wakf properties because in the facts of the case it would have been useless. The Division Bench in para. 6 of the judgment observed that no objective standard would be available for determining the market value of the wakf properties.

Subsequently, K.C. Das Gupta and B.K. Guha JJ. in Manik Chand Mondal and Another Vs. Sudhir Kumar Mondal and Another, explained the decision in Hafiz Md. Fateh Nasib v. Haji Abdur Rub Supra thus:

So, when a Plaintiff comes to Court as a Mutwalli and his interest is to be valued, it is only reasonable to say that it is the market value of the Mutwalli''s interest which forms the basis. That is what was decided in Hafiz Md. Fateh Nasib Vs. Haji Abdur Rub and Others, .

The Special Bench in Sisir Kumar Dutta and Others Vs. Susil Kumar Dutta, also pointed out the scope of the decision in Hafiz Md. Fateh Nasib''s case Supra (paras. 18, 20, 34).

For these reasons I must reject the extreme contention that in a suit brought by a Mutwalli for recovery of possession of wakf property governed whether by Section 7(iv)(b) or Section 7(v), the valuation given in the plaint is final and the Court is powerless to hold any enquiry to determine whether the suit has been correctly valued or not and whether the relief of possession of wakf property sought for or the market value of the wakf property has been correctly assessed or not. In an enquiry u/s 11, the Court may not take secular properties, as comparable units but might try to find out the market value, it'' any, of the wakf properties in dispute. But the Court certainly cannot decline to examine at all the correctness or otherwise of the valuation in a suit of present description and overrule the Defendant''s objection in limine. Thus B.K. Mukherjee and Chundra JJ. in Md. Eshaque v. Md. Amin AIR 1948 Cal. 312 (319-20) with reference to a suit by a Mulwalli for declaration of title and recovery of possession of admitted wakf property observed:

It is true that the suit being one for possession ad valorem court-fees should not be paid on the market value of the wakf properties. The Plaintiff was undoubtedly suing as Mutwalli and he wanted to recover possession of properties, admitted by the Defendant to be wakf properties, solely in that capacity. The Mulwalli is not the owner and he can be called upon to value his suit in accordance with his estimate of what the value of his rights as Mulwalli of the properties would amount to. The Court can certainly check this estimate and decide for itself on proper materials as to what the valuation should be.

Mr. Ghosh, learned Advocate for the Petitioner in this connection, relied upon a recent decision of Murari Mohan Dutt J. in Sm. Belarani Bhattacharyya and Others Vs. Khondkar Asadar Rahaman and Others, . The learned Judge, in the said case, held that ad valorem court-fees were payable in a suit for declaration and recovery of possession of Pirottar property and directed an enquiry to be held for ascertaining whether or not the value of the properties claimed as pirottar had been correctly given in the plaint.

I make it clear at this stage, I have not entered into the merits of the respective contentions regarding the correctness or otherwise of the valuation given in the plaint. I have decided to set aside the order complained of only on the ground that the learned Munsif failed to exercise the jurisdiction vested in him by refusing to hold any enquiry at all and to consider whether the suit in question has been correctly valued or not. Therefore, it would be up to the learned Munsif to consider the relevant matters and to come to his own conclusion about the valuation.

I find no substance in the preliminary objection raised by Mr. Chakraborty, learned Advocate for the opposite party, that this revisional application is barred u/s 12 of the Court Fees Act, 1970. The Supreme Court in Nemi Chand v. Edward Mills Company Ltd. Supra 1953 S.C. 28 explained the scope of Section 12 of the Court Fees Act, 1870 and the said decision is clearly against the contention of Mr. Chakraborty.

Mahajan J. pointed out (8) that Section 12, when it says a decision as to court-fees shall be final decision is on the same footing as other interlocutory non-appealable orders under the Code. If a decision u/s 12 is reached by assuming jurisdiction which the Court does not possess or without observing the formalities which are prescribed for reaching such a decision, the order obviously would be revisable by the High Court in the exercise of revisional powers. Thus, according to the Supreme Court decision in Nemi Chand and Anr. v. Edward Mills Company Ltd. Supra (32), the formalities construed u/s 12 means that no appeal lies from an order of this character as such and it means no more than that. The Supreme Court, further, pointed out the decision as to the question and category cannot said to be one following under the ambit of Section 12.

In the instant case, it was not simply the question of determining of valuation or appraisement, the same could only arise after it is settled in what class or category the present suit forms. There has been clearly a jurisdictional error on the part of the trial Court by its failure to hold any enquiry as to the correctness or otherwise of the valuation of the suit. Accordingly, the revisional application is maintainable.

In view of Section 7 of the Suits Valuation Act the court-fee value and jurisdiction value in suits governed by Section 7(iv)(b) is closely connected with the question of pecuniary jurisdiction of the Court below entertaining the suit.

In the above view of the matter I make this Rule absolute and set aside the order complained of. The learned Munsif is directed to determine again the issue regarding valuation of the suit in accordance with law and thereafter further proceed with the suit.

There will be no order as to costs.