- (1.)THE petitioner is the plaintiff in a partition suit, T. S. No. 45 of 1971, filed in the court of the Subordinate Judge, Dhenkanal. She claimed 1/8th share in the suit properties as per the settlement record-of-rights of 1959 and for separate allotment of the same. The reliefs claimed in the plaint were as follows:-" (i) That her share in the disputed property be defined to the extent of l/8th and a preliminary decree be passed accordingly adjusting sale made by defendant No. 2 and defendant No. 3 to the extent indicated and adding the same towards the share of defendant No. 1; xx Xx XX (iii) That delivery of possession as per the allotment be made over through court. " It is clear from the averments of the plaint that the plaintiff's quantum of share was in controversy and she wanted adjudication of the same. In para 7 of the plaint the plaintiff valued the suit at Rs. 1,250 which was the value of her 1/8th share for the purpose of jurisdiction and court-fee, the total market value of the suit properties being Rs. 10,000. She paid a fixed court-fee of Rs. 22. 50 treating it as a simple suit for partition.
(2.)DEFENDANTS 4, 6 and 7 contested the suit by filing a joint written statement they denied the plaintiff's share and her right to claim partition, though she was admitted to be the daughter of late Basudev of the family in whose name the properties stood exclusively recorded in the record-of-rights of 1924. They contended, inter alia, that they are in possession of the entire suit lands in their own right, title and interest. The plaintiff having given up her interest in the suit properties voluntarily long ago, was not entitled to partition and for recovery of her share. The other defendants, viz. , defendants 1, 2, 3 and 5 who have undisputed shares in the suit properties admitted the plaintiff's case for partition. The Subordinate Judge decreed the suit whereupon defendants 4, 6 and 7 filed Title Appeal No. 27 of 1973 in the court of the Additional District judge. Dhenkanal. They also paid a fixed court-fee of Rs. 22. 50 on their memorandum of appeal.
(3.)THREE contentions were raised before the lower appellate court. First was that in view of the defence taken by the contesting defendants the plaintiff being out of possession and her title being denied, was liable to pay ad valorem court-fee on the plaint. The second contention urged by the plaintiff-respondent was that the appeal before the Additional District Judge was not maintainable as valuation for the purpose of jurisdiction would be the total value of the suit properties which was fixed at Rs. 10,000 and not the value of the plaintiff's share which was Rs. 1,250, and that the appeal should lie to the High Court. The third contention was that the learned Subordinate Judge accepted some documents for the plaintiff and exhibited them after the closure of the case and did not dispose of two petitions filed by contesting defendants 4, 6 and 7 wherein they prayed for acceptance of more documents from them marking them as exhibits in the case from their side, to frame three more issues, and to give further opportunities to the parties to lead evidence thereon. The subordinate Judge, however, without passing any express order disposing of those petitions, framed three additional issues, viz. , issues 8, 9 and 10 behind the back of the parties and no opportunity was given to the parties to adduce evidence thereon.