RAVURI BHADRAYYA Vs. VELURI SIVARAMA SASTRI
HIGH COURT OF ANDHRA PRADESH
VELURI SIVARAMA SASTRI
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(1.) These two second appeals arise out of two suits filed by the plaintiff ( Respondent in S. A. No. 435 of 1971 and 1st respondent in second appeal No. 436 of 1971 ) for recovery of possession for eviction and recovery of damages for use and occupation. S. A. No. 435 of 1971 arises out of O. S. No. 33 of 1963 while S. A. No. 436 of 1971 arises out of O. S. No. 2 of 1961. It is the plaintiffs case in O. S. No. 2 of 1961 that on 31-8-1953 the 1st defendant was inducted into possession as a lessee on his executing a lease deed agreeing to pay Rs. 101.00- per annum. Defendant 2 and 3 are members of the joint family of the 1st defendant. The 1st defendant having entered into possession as a lessee inducted defendants 4 and 5 into possession and also committed default in payment of rent. In O. S. No. 33 of 1963, it is the case of the plaintiff that items 1 and 2 of the plaint schedule properties were leased out to the father of the defendants 1, 3, 4 and 5 on 17-12-1944 and item No. 3 was leased out on 29-4-1946. These defendants inducted defendants 6 and 7 into possession. The 6th and 7th defendants in this suit are the 4th and 5th defendant in the other suit.
(2.) These two suits were resisted on various grounds which it is not necessary to reiterate here having regard to the only two points that were urged in these second appeals. The two points are (1) that the plaintiff having valued the suits under Section 40 (1) of the Andhra Court-fees and Suits Valuation Act, the trial court has no jurisdiction to go into the question of title ; and (2) that if the suits are treated as one for recovery of possession from a trespasser, they should have been accordingly valued and if so valued, they would be beyond the pecuniary jurisdiction of the District Munsifs Court.
(3.) So far as the second contention is concerned, that is based on a ground not taken in the written statement. The defendants never objected to the valuation of the suits and never contended that if the suits are valued as one for recovery of possession, the subject-matter of each of the two suits would be more than Rs. 5,000.00- and consequently the District Munsifs Court would have no pecuniary jurisdiction to try the suits. The defendants not having taken this objection in their written statement and not having pressed it in the trial court, they cannot be allowed to raise it for the first time in these second appeals. All questions as regards valuation and jurisdiction must be taken in the written statement and in any case in the trial court. Under sub-section (2) of Section 11, any defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient and all questions arising on such pleas are required to be heard and decided before the hearing of the suit. Under sub-section (4) of Section 11, a question relating to the value for the purpose of determining the jurisdiction of the court shall be heard and decided before the hearing of the suit. If the defendants had raised this question in the trial court, that court would have enquired and decided that question. If upon such enquiry the value of the subject-matter of the suit was found to be beyond the pecuniary jurisdiction of the court, the plaint would have been returned for presentation to the proper Court. It may be that if such an objection was raised, on enquiry the court would have found that even if the suits were valued as one for recovery of possession, the Court had pecuniary jurisdiction. In any case, it cannot be positively found that the trial court had no pecuniary jurisdiction to entertain the suits relating to the present subject-matter. That involves an enquiry into questions of fact and therefore cannot be allowed to be agitated for the first time in these second appeals. The second contention must therefore, fail.;
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