Decided on March 10,1969



- (1.) THIS application under section 115 of the Code of Civil Procedure is directed against an order dated 19th March 1968 whereby the Civil Judge, Class I, Durg, held that he had jurisdiction to try the suit, that the court-fee paid was deficient to the extent of Rs. 800 /- and that the suit was not bad for misjoinder of defendants except in regard to the defendant no. 17. While this application was made by the plaintiffs, the defendant 16 (auction- purchaser) too has filed Civil Revision No. 524 of 1968 to challenge the same order. THIS order shall dispose of the two revision applications.
(2.) THE material facts are these. Jagdishwar Prasad (defendant 15) filed against Laxman Prasad (defendant 1), Lakhanlal defendant 10) and Kishorilal (defendant 11) Civil Suit No. 28-B of 1960 and obtained a decree for Rs. 3,600 /-. In execution of that decree, a house and site were attached and put to sale on 6th December 1963. THE defendant 15 purchased the property for Rs. 24,000 /-. THE first three plaintiffs (who claimed to be members of a Hindu joint family along with the other plaintiffs 4 to 12 and the defendants 1 to 14) filed an objection against attachment of the property. That objection was dismissed on 6th January 1965. THEreupon the plaintiffs 1 to 3 filed the suit out of which this revision arises claiming the following dubiously-worded reliefs: (i) It be declared that the decree in Civil Suit No. 28-B 1960 and the sale of the disputed property in execution thereof were not "enforceable against the joint family property." (ii) It be declared that the aforesaid decree & did not bind the shares and interests of the plaintiffs in the ancestral property. (iii) THE auction-purchaser be restrained from taking possession of the disputed property. Having heard the counsel, I have formed the opinion that these revisions must be allowed. Although the first two reliefs may, in essence, be regarded as seeking to establish the right which the members of the joint family claim in the property, it will be readily seen that they are not restricted to the right of the unsuccessful objectors alone in that property. It is this right of numerous persons which has to be valued for the purpose of jurisdiction. Obviously the claim is not confined to one under Order 21, rule 63 of the Code because numerous other persons have joined in filing the suit. Finally, even when it be so confined, the value of the subject-matter is the "value to the plaintiffs". The lower Court has referred to Phul Kumari v. Ghanshyam Misra. L R 35 Calcutta 202 (P. C.) and Tejabai v. Gram Panchayat, Kaudia, 1960 MPLJ 779 = A I R 1960 M. P. 316. for the view that, in such a case, the amount of the decree is the value of the relief. But, in both these cases, the property had not been put to sale. When the property has been sold and the sale confirmed before the suit, the value of the shares, in regard to which declaration is claimed, will determine the value of the reliefs because, in the absence of such declaration, the rights of the objectors to their shares would conclude. The matter was considered by a Division Bench of the Calcutta High Court in Barjor Dorabji v. The Calcutta Chemical Co. Ltd., 43 C W N 609. . 43 C W N 609. which referred to the judgment of Lord Robertson in Phul Kumari v. Ghanshyam Misra,. I L R 55 All. 316. (supra) and observed ; "In the case before us, the property had already been sold and purchased by the Chemical Company before the suit. Therefore the value of the suit to the plaintiff is the value of the property which he had already lost by reason of the execution proceedings. If his case succeeds on the merits, the execution sale would go and he would get back the property. If he loses the suit on the merits, he loses the whole property, that is to say, he loses entirely the benefit of his purchase which he had made from Manikjee on the 12th December 1935. In our judgment, the learned Subordinate Judge has entirely overlooked the material point of difference between Phul Kumari's case (supra) and Moolchand's case(i) and the case before him, namely, that this suit had been instituted after the property in suit had already been sold in execution of the decree of Defendant No. 1 and had Jbeen purchased by the same Defendant" (Page 611.) For the contrary view, the learned counsel for the plaintiffs relied upon Kisan v. Totaram. A I B 1937 Nag. 253=1 L B 1937 Nag. 342; Radhabai v. Madhorac . I L R 1944 Nag. 783 and Tejabai v. Gram Panchayat, Kaudia (supra) which was subsequently affirmed in an appeal under the Letters Patent. These authorities are not in point because none of them deals with a case in which the objector was claiming a declaration of his title to the property which had already been sold in execution of the decree and the sale was confirmed in favour of the purchaser. Mst. Manik v. Ranjas" A I R 1923 Pat. 152. is also not apposite because though the property had been sold in that case, the question considered related only to court-fee and it was held that, notwithstanding the sale, the court-fee payable was governed by Article 17 of the Schedule II of the Court-fees Act. From the observations made towards the close of the judgment in that case, it would appear that the larger valuation estimated by the Stamp Reporter was accepted. Here the main question is the valuation of the first two reliefs for the purpose of jurisdiction of the Court. Following the view taken by the Calcutta High Court in Barjor Dorabji v. The Calcutta Chemical Co. Ltd. (supra), I hold that the value of the suit in regard to the first two reliefs is "the value to the plaintiffs", namely, the value of their shares in the property which has been auction-sold.
(3.) AS already indicated, the Civil Judge proceeded to determine the questions of court-fee and joinder of parties also. He did so on the erroneous view that the value of the decree is the value for the purpose of jurisdiction. He shall now proceed to determine the question of valuation afresh and, if he finds that he has jurisdiction to try the suit, he shall then determine the other two questions. The two revisions succeed and are allowed. The order dated 19th March 1968 is set aside and the case is remitted to the lower Court for a fresh decision according to law with advertence to the observations made in the foregoing paragraphs. In the circumstance of the case, the parties are left to bear their own costs. Applications allowed: Case remitted.;

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