BASANT KUMAR AGARWALLA Vs. AJIT KUMAR SINHA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 15.4.1989 passed by the District Judge, Dhanbad, in T.A.No. 74 of 1988 whereby and whereunder the learned lower appellant court (hereinafter referred to as the court below) has allowed the appeal and set aside the judgment and decree dated 12.8.1988 passed by the Munsif, 1st court, Dhanbad, in T.S. No. 139 of 1985 and remanded the matter to the trial court with a direction to decide the question of valuation and to ask the appellant to pay the ad valorem court fee for deciding the question of title in respect of the suit property.

(2.) THE facts of the case are as follows:

(3.) MR . P.K. Prasad, learned Counsel appearing for the appellant, submitted that the learned lower appellate court has committed an error of lav/ in setting aside the judgment and decree of the trial court and in remanding the matter to it for passing a fresh judgment. learned Counsel submitted that the trial court has framed a specific issue and gave a specific finding that the relationship of landlord and tenant existed between the parties and therefore the suit was decreed although the question of title was considered by the trial court incidentally. In that view of the matter, according to the learned Counsel, the question of valuation and payment of ad valorem court fees does not arise. learned Counsel further submitted that the question of payment of ad valorem court fee is to be determined on the basis of the averments made in the plaint and not on the basis of the pleading of the defendant in the written statement. learned Counsel has relied upon a judgment of this Court in the case of Kailash Verma v. Sushil Kumar Vohra. 1991 (1) PLJR 136.