- (1.) The present revisional application is directed against Order No. 25 dated 17-2-1995passed by the 2nd Court of Additional District Judge, Howrah in Title Appeal No. 141 of 1991. By the impugned order, the concerned Court dismissed an application filed by the defendant / appellant for appointing an expert in determining the market value of land in dispute. A suit for declaration and injunction was filed contending, inter alia, that the defendant being a monthly tenant had raised a pucca construction on the land which was used as a passage for using the service latrine situate within the said holding. The declaration is that the defendant being a premises tenant under the plaintiff he has no right and authority to demolish the portion described in 'A' Schedule of the plaint. Further declaration that has been sought for is that the defendant has no right to make construction on the 'B' Schedule property. The plaintiff valued the suit separately for recovery of possession and for declaration and injunction. The material allegations of the plaint were controverted in the Written Statement and a specific point was taken about the question of valuation. By Order No. 74, dated 19-4-1991, the Court of Munsif rejected the said petition. Against the same, this Court was moved in revision and the Hon'ble Justice N. K. Mitra by an order dated 4-6-1991 directed the Appeal Court to re-hear the question on the point of valuation first and if necessary to lead evidence on the same. The point of controversy is in view of recovery of possession being sought for where the party seeking such relief would be required to pay ad valorem Court-fees for the land described under Schedule 'B' of the plaint. The land covered by Schedule 'B' is a passage leading to service latrine. One of the principal prayers is that the defendant has no right to raise any construction on 'B' Schedule property. If the main prayer is centred round for a declaration that the defendant has no right to raise construction on 'B' Schedule property and the land covered by the said schedule is a gateway leading to the entry of service latrine then the party filing the suit may value the same on the basis of declaratory relief sought by him. Here the offshoot of the relief consequential to the main relief is that the defendant has no right to make construction on 'B' Schedule property which is dubbed as common passage. Here the suit is not against the trespasser but against the tenant for his unauthorised act of constructions over a passage leading to the entry of the gateway of the easement of necessity attached to the tenancy. The learned Judge of the Appeal Court has found from the amended plaint that the land covered by 'B' Schedule of the plaint is part and parcel of the passage for going to the service latrine. The principal relief sought for in the connected suit being one of the declaration to the effect that the defendant has no right to raise construction on 'B' Schedule land, therefore the question of recovery of possession in respect of unauthorised construction though a consequential relief does not stand above the principal relief. If the principal relief is entertained that the defendant has no right to make unauthorised construction on 'B' Schedule property and he being a tenant and the said unauthorised construction further being situate leading to the gateway of enjoyment of facility of easement of necessity, the plaintiff can very well value the suit in terms of Section 7(IVB) of the Court-fees Act and not under Section 7(V) of the Court-fees Act. Accordingly, this Court feels that in the background of the conspectus of controversy both the Courts below have rightly concurred in arriving at its decision that Section 7(IVB) of the Court-fees Act will be made applicable and as such no fruitful purpose will be served by making an illusory exercise of appointing an expert valuer as it is not a case covered by the ambit of dimension of requirement of payment of ad valorem Court-fees.
(2.) Accordingly, this Court does not find any infirmity in the impugned order for which the same is required to be interfered with either for material irregularity in exercise of jurisdiction or for substantial failure for ends of justice. Accordingly, the revisional application fails and it stands dismissed.
(3.) There shall, however, be no order as to cost.Application dismissed.;