- (1.)THIS is a regular second appeal by Tipper Chand defendant against the judgment and decree of the Senior Subordinate Judge, with enhanced appellate powers. Karnal, who dismissed his appeal on 5th December, 1958, on the ground that it was insufficiently stamped and that the mistake on the part of the appellant was not bona fide. The facts as are necessary for the proper disposal of the point of law can be stated In a narrow compass.
(2.)MATU Ram plaintiff respondent filed a suit against the appellant and his brother ayudhiya Parshad respondent praying for permanent injunction restraining the appellant from interfering with his ownership and possession of the southern one-half portion of the roof of the Inner Dahliz as shown in the plan filed with the plaint, also from using that portion of the roof as passage, and further restraining him from opening any door in the same. The trial Court decreed the suit and granted a permanent Injunction restraining the defendant appellant from in any way interfering with the ownership and possession of the plaintiff in regard to the southern one-half portion of the roof of the inner Dahliz by constructing any door or an opening towards it or by passing over it. It was also directed that the defendant appellant and the plaintiff respondent shall construct a partition wall in the midst of the property in dispute from east to west, 41/2 inches wide and 10 feet high before 1st December, 1957, bearing the expenses equally. It may be mentioned that the defendant appellant took an objection before the trial Court that requisite court-fee in the case had not been paid by the plaintiff. Defendant no. 2 did not, however, contest the suit and admitted the facts as stated by the plaintiff in his plaint.
(3.)AN appeal was taken to the Senior Subordinate Judge, with enhanced appellate powers, Karnal, who was of the opinion that necessary issues arising from the pleadings of the parties had not been struck and that the plaint was also not sufficiently stamped. He held that the plaintiff had asked for two distinct and separate reliefs by way of injunction, restraining the defendant No. 1 from opening the door and also from using a part of the roof, shown red in the plan, as passage. The alternative relief prayed for was for possession of one-half share of the roof of the inner Dahliz by partition. The Senior Subordinate Judge hearing the appeal relied upon the rules framed under Section 9 of the Suits Valuation Act in holding that the value for the purposes of court-fee and jurisdiction in respect of the two reliefs was Rs. 110/-, and the aggregate amount of court-fee payable for these two reliefs came to Rs. 21/ -. The case was consequently remanded and the plaintiff was permitted to make good the deficiency in court-fee. The trial Court gave findings on the issues as recast which are not necessary to be reproduced here, but it may be stated that the suit was decreed again. A permanent injunction was granted to the plaintiff restraining defendant No. 1 in the terms already referred to above.