Titru vs Paras Ram

(1) This is an application against the order of the trial court (Munsiff Billawar) dated 6671 retuning the plaint to the plaintiff for presentation to the

proper court The plaintiff filed an appeal before the District Judge, Kathua against this order. The District Judge also affirmed the order of the trial

court vide his order dated 471972.

(2) The suit out of which this application arises was a suit for preemption and possession of the land in suit. According to the allegations of the

plaintiff in his plaint, he sought to exercise his right of prior purchase over the land sold to the defendantvendee on the ground that he had a

preferential right to purchase the property. The land was sold to the defendant vendee by the vendor for a sum of Rs 400/ but the vendee had

constructed a house on the land before the sale and after the agreement to sell was executed in his favour by the vendor. It may be noticed here

that the defdt. vendee constructed a house over the land before his title was completed by execution of the sale deed. At the time when the vendee

constructed the house, the vendee had given the possession of the land to the vendee but bad not yet parted with the title of the property.

Subsequently however the vendor sold the land to the vendeedefendant for a sum of Rs. 400/. The court below assessed the value of the house At

Rs. 4.420/ and adding the value of the land, as admitted in the sale deed namely Rs. 400/, found that the value of the suit was Rs 4,820/and

therefore the suit fell beyond the pecuniary jurisdiction of the court.

(3) In support of the rule Mr. Tirath Singh contended that this being a suit for preemption, it had to be governed by a special consideration because

the preemptor has a right to be substituted for the vendee. What was sold to the defendantvendee was only the land and not the house which was

an independent act having nothing to do with the same. If the plaintiff was to be substituted for the vendee then he could claim only the land which

was perched by the vendee. In the circumstances the claim of the plaintiff would be confined to the land alone and not to the house. The question

of reimbursing the defendant for the house or for the improvements made in the garden would be a claim in equity which may be determined by the

court on equitable consideration at the time of the trial but will not form the subject matter of the suit for the purpose of fixing the valuation either to

compute the courtfee or to fix the jurisdiction and valuation of the suit In support of his argument the learned counsel has relied on a single Bench

decision of the Punjab High Court in the case of Sansar chand Vs Ram Lal and anr. reported in AIR 1959 Punjab 252 The learned Judge in this

case after considering the entire case law on the point observed as follows:

..........It is obvious .that his being a right of substitution he is to pay courtfee on the property as regards the rights to which he claim to be

substituted for the original vendee. The claim of a defendantvendee in a suit like this for compensation for improvements is an equitable claim, and

in certain circumstances, though not always, a plaintiff preemptor may be a decree of a court be compelled to take substitution for the original

vendee subj ct to, in equity, compensating the original vendee for improvement.

x x x x

(4) It would be manifestly illogical in such cases to force the plaintiff to pay courtfee arising out of an equitable claim of a defendant. The demand of

courtfee as in these cases does not directly arise out of the claim of the pltff. It is the result of the equitable claim of the defendant for compensation

against the plaintiff, That the defendant foregoes the improvement itself and takes its value from the plaintiff appears to me not to justify burdening

of the pltff, for courtfee in connection with such a claim."".....

(5) Mr. Mahajan appearing for the other side has not been able to cite any authority raking a contrary view. The view taken by the learned Single

J. is inconsonance with the nature of the rights of a preemptor and I find myself in complete agreement with the view taken by the learned Judge.

(6) It is manifest that in a suit for preemption the plaintiff merely claims the property that has been sold and he cannot be saddled or burdened with

the courttee on the value of the property which does not form the subject matter of the sale. In the instant case the sale deed was only for a

consideration of Rs 400/ and it was the land alone that was sold to the defendantvendee. The plaintiff claims to preempt this land which was sold

to the defendantvendee. The fact that the land contains a house was not at all germane for the purpose of determining the courtfee to be payable.

Even Sec. 7 (vi) of the Courtfees Act makes a specific provision for the payment of courttee to be paid in such a suit. This section clearly

contemplates that the court fee is to be according to the value of the land, house or garden in respect of which the right is claimed. In the instant

case as the plaintiff is claiming the right only in respect of the land and not the house or the garden, he can not be called upon to pay courtfee on the

value of these two properties i. e. house and garden.

(7) In these circumstances the court below took a wrong view of the law in holding that the courtfee payable must include the value of the house

and garden and so as to make the suit fall beyond the pecuniary jurisdiction of the trial court.

(8) Mr. Mahajan appearing for the respondent however submitted that as he had taken a specific plea in his written statement that the value of the

land was much higher than one shown in the sale deed, it was for the trial court to determine the actual value of the land sold to the defendant

vendee in accordance with the provisions of the Courtfees Act. It appears that the trial court has merely taken the consideration of the sale deed

into account and has neither framed an issue on the point of actual value of the land in question nor given a decision on |the same* In these

circumstances therefore the court below will now frame an issue on this point and after taking evidence of the parties decide the same and if after

such decision he finds that the value determined by him exceeds his pecuniary jurisdiction, it will be open to him to return the plaint to the plaintiff.

For the reasons given above the application is allowed, the orders of the courts below are set aside and the matter is sent back to the trial court for

proceeding with the case in accordance with law and in the light of the observations made above particularly the question of framing an issue on the

point relating to the value of the land in accordance with the provisions of the Courtfees Act and giving a finding thereon. The parties are directed

to appear before the court below (Munsiff Billawar) on April 22, 1974; failing which the Munsiff will proceed exparte against the party which does

not appear before him on that date.