TARAMONI CHAKRABORTY Vs. MD ALI HAIDER
HIGH COURT OF CALCUTTA
MD ALI HAIDER
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(1.)MD. Ali haidar, who is the opposite party No. 1 to this Rule as Matwali to the estate of Haji Karim Buksh, has instituted a suit against the present petitioners and others in the 1st Court of munsif at Sealdah, inter alia, for a declaration that the suit property described in the Schedule 'a' to the plaint is a wakf property appertaining to the estate of Haji Karim Buksh and that he is the Mutwalli of the said wakf estate and for further declaration that the defendant No. 1 had no right or authority to transfer or alienate the said property and that the alleged deed of sale executed and registered on 19th April, 1967 by the defendant no. 1 in favour of the defendant Nos. 2 to 4 and also the alleged deed of sale dated 19th April, 1967 were all illegal, fraudulent, void ab-initio and nullity and the defendant Nos. 2 to 4 had acquired no title in the Schedule 'a' property. He has also prayed for a recovery of possession of Schedule 'a' against the defendant Nos. 2 to 5. In the said suit the opposite party No. 1 has also prayed for declaration that the defendant Nos. 6 and 7 are monthly tenants in respect of 'b' and 'c' scheduled properties and for recovery of possession of the 'b' and 'c' scheduled properties through defendant Nos. 6 and 7, for permanent injunction and for recovery of mesne profits. The schedule 'a' property consists of premises No. 46, Simla Road within the corporation of Calcutta Comprising 2 cottahs, 12 chittacks and 8 sq. feet of land with a two storeyed building having eight bed-rooms, staircase room, Kitchen, privy, water taps etc. Schedules 'b' and 'c' are parts of the said Schedule 'a' property. The suit has been valued at Rs. 5000/- and act valorem court fees have been paid thereon.
(2.)THE learned Munsif, 1st Court, Sealdah of his order No. 30 dated 18th July, 1975, held that the suit has been properly valued and has answered the said issue regarding valuation in the affirmative. According to the learned Munsif the suit property is a wakf property and the suit has been brought by the plaintiff as a Mutwali. The learned Munsif is of the opinion that there was no objective standard for ascertaining the value of the property of the plaintiff as a Mutwali and the valuation given by the plaintiff should be accepted. The learned Munsif, in this connection, has relied upon the decision reported in A. I. R. 1954 Calcutta 101. (Hafiz Muhammed v. Hazi abdur Rub 57 C. W. N. 820 ). The contesting defendants have obtained this rule against the aforesaid order.
(3.)THE plaintiff in his plaint have not categorically averred whether Court fees have been paid under clause (iv) (b) or under clause (v) of Section 7 of the West Bengal Court Fees Act (Act)10 of 1970 ). But the averments made in paragraph 25 of the plaint may go to indicate that the court fees have been paid according to Section 7, (iv) (b) of the Act. It may be noted that at one stage of his arguments. Mr. Chakraborty appearing on behalf of the opposite party No. 1 tried to contend before me that the instant suit may be considered as one for possession of land and building within the meaning of clause (v ). In case it is held that the aforesaid suit is for obtaining a declaratory decree and for consequential relief under Section 7 (iv) (a) of the West Bengal Court Fees Act (Act 10 of 1970) then the amount of fee payable by the plaintiff opposite party No. 1 should be, computed according to the amount at which the reliefs sought have been valued in the plaint subject to the provisions of Section 11 of the said Act.
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