NATHJIBHAI HARJIWAN PANDYA Vs. SHANKARLAL NATHJIBHAI BHATT
HIGH COURT OF BOMBAY
NATHJIBHAI HARJIWAN PANDYA
SHANKARLAL NATHJIBHAI BHATT
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(1.)The point in dispute in this appeal is simple. The plaintiff is a member of the Dakor Travadi Mevada caste, and the community having passed a resolution excommunicating him, he filed this suit for a declaration that the said resolution was improper and illegal and that he, as a member of the said community, was entitled to use or enjoy in common the moveable as well as immoveable properties of the community as a co-owner and for a permanent injunction against the defendants, representing the community, restraining them from obstructing him in his enjoyment of the said properties as a co-owner.
(2.)On the contention of the defendants a preliminary issue, whether the Second Class Subordinate Judge of Umreth had jurisdiction to try the suit, was framed, and the trial Court held that as the value of the properties of the panch in respect of which a permanent injunction was claimed was worth more than Rs. 5,000, it had no jurisdiction to try the suit and ordered the plaint to be returned to the plaintiff for presentation to the proper Court. The lower appellate Court took a different view and held that although the plaintiff indirectly sought for possession, still it was joint possession that he claimed, and as there were nearly 1100 members of the caste, the plaintiff's interest in the caste properties would be 1/1100 which would be worth! much less than Rs. 5,000. On this ground it held that the Second Class Subordinate Juldge of Umreth had jurisdiction to try the suit and remanded it to the trial Court for disposal on merits.
(3.)The relief claimed by the plaintiff in paragraph 8, Clause (a), of the plaint is so worded as to show that a permanent injunction was claimed as a relief consequential upon the declaration sought for. It is, therefore, urged that the suit falls under Section 7(iv)(c) of the Court-fees Act and the plaintiff is entitled to place his own valua on the claim. Then under Section 8 of the Suits Valuation Act, the valuation for purposes of jurisdiction would be the same as the valuation for the purposes of Court-fees. On the other hand, it is urged that as the plaintiff was not in actual possession of the caste properties on the date of the suit he could! not ask for a mere injunction, but what he in substance asked for was the joint possession of the caste properties. In either view of the case, I do not think that the subject-matter of the suit is beyond the jurisdiction of the Second Class Subordinate Judge of Umreth. If the relief of permanent injunction claimed by the plaintiff be regarded as a consequential relief and the suit is governed by Section 7 (iv)(c) of the Court-fees Act, then undoubtedly the Second Class Subordinate Judge of Umreth has jurisdiction to try the suit as held in Gulabsingji v. Lakshmansingji, (1893) I.K.R. 18 Bom. 100. But if the suit is regarded as one for joint possession of the caste properties, then the subject-matter of the suit is the value of the plaintiff's share in them. It is, however, urged that in this case the plaintiff has asked for joint possession of all the properties of the community which are worth more than Rs. 5,000 and that the subject-matter, therefore, should be regarded as being beyond the jurisdiction of the Second Class Subordinate Judge of Umreth; but the plaintiff does not ask for the exclusive possession of the properties, but only a right to enjoy the properties along with the other members of the community. Although the properties of the community may be inalienable and importable, the plaintiff has no right to claim all the properties for himself. The plaintiff has a limited interest in those properties and in this suit he wants to enforce only that limited interest which cannot have the same value as the exclusive interest in the property. As pointed out by the lower appellate Court, there are more than 1100 members of the community and the plaintiff's interest cannot be valued at more than his share. The plaintiff cannot ask for separate possession of his share as the property is not to be partitioned, but he can seek to enforce his limited interest in those properties to the extent of his share by being allowed to use them along with the other members of his community. I therefore hold that the value of the subject-matter of the claim made by the plaintiff is less than Rs. 5,000 and the trial Court has jurisdiction to try the case. The appeal is, therefore, dismissed with costs.
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