MADANO MOHANO NAIKO Vs. ARJUN NAIKO
LAWS(ORI)-1950-3-14
HIGH COURT OF ORISSA
Decided on March 27,1950

Madano Mohano Naiko Appellant
VERSUS
Arjun Naiko Respondents

JUDGEMENT

PANIGRAHI, J. - (1.) THIS revision is directed against the order of the Subordinate Judge, Berhampur, calling upon the pltf to pay 'ad valorem' Court -fee on his plaint. The pltf filed a suit for possession of certain lands alleged to be his Sardar Inam lands. The Revenue Ct in a suit brought under the Madras Hereditary Village Offices Act (Madias Act III (3) of 1895) proceeded on the assumption that the inam consisted of the emoluments arising from the lands & left it open to the pltf to establish his right to the land itself in a civil Ct. The pltf, thereafter raised this suit for establishing his right to the land as constituting a part of his emoluments in lieu of the Sardar service & prayed for possession of the land, & in the alternative prayed for partition of the same & possession of one -sixth share. The pltf's case primarily is that the land itself constituted the inam. If however the Ct should hold that it is not so, he wants to avail himself of the alternative remedy on the basis that the land would form a part of joint family property & would be available for partition. The pltf valued the occupancy right at Rs. 20,000/ - but, for purposes of Court -fee, valued it according to Sch II Article 17 A. His contention is that the nature of the right is such that it is incapable of valuation & has no market value, the sole basis for this argument being that the property is declared inalienable by Schedule of the Madras Act III (3) of 1895. Despite the fact that the lands are inalienable it cannot be said that they are excommercium or that they are incapable of valuation: it may well be that on that very ground the property may have a larger value than otherwise. The pltf having sued for possession is liable to value it under Schedule , Court fees Act. The pltf himself has assessed the value at Rs. 20,000/ - & I fail to see how the argument that it is incapable of valuation can be reconciled with the pltf's valuation of the occupancy right at Rs. 20,000/ -. After hearing Mr. Rao, Counsel for the petnr, we are satisfied that this is not a case which can be brought under Article 17 A & we are of opinion that the order of the learned Subordinate Judge is correct & must be upheld, & would hold that the pltf is liable to pay 'ad valorem' Court fee on the valuation he puts upon the relief of possession claimed by him.
(2.) MR . Rao, however, submits that he should be given permission to amend his plaint so as. to reduce the valuation which he erroneously put at Rs. 20,000/ -. That is a course which, he may adopt in the lower Ct if he so chooses. But it is not for us to pronounce any opinion on the step he proposes to take. It will be for the lower Ct to adjudicate upon such a petn properly filed in due course by the pltf & to dispose it of on merits. So far as the principle on which Court -fee is to be paid is concerned, we hold that the order of the learned Subordinate Judge is correct & should be upheld. This revision fails & is dismissed with costs. Hearing fee - two Gold Mohurs. Ray, C.J. I agree.;


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