JAGAT NARAYAN, J. - (1.) THIS is a revision application by defendants 6, 7 and 8 against an order of Additional Munsiff Jaipur holding that the suit brought against them by Himmat Bahadur, plaintiff, respondent No. 1 is not undervalued.
(2.) THE suit has been brought inter alia for possession over a portion of a house. According to the allegation made in the plaint, the house was the ancestral property of Himmat Bahadur plaintiff and his brother Prag Narayan. A portion of the house was in the possession of Himmat Bahadur. Litigation took place over this portion between the two brothers, which was decided by the award of an arbitrator. Under the award a sum of Rs. 1100/- was paid to Himmat Bahadur who relinquished possession over the portion and the property became that of Prag Narayan. A condition was, however, attached under the award that if the property were to be sold, it would be open to Himmat Bahadur to purchase the portion which was in his possession for a sum of Rs. 1100/ -. Prag Narayan's daughter Smt. Rajdulari, respondent No. 2 her sons Anand, Raju, Asutosh and daughter Rajlaxmi sold the house including the above portion in favour of the present applicants for Rs. 9,000/ -. THE present suit was brought by Himmat Bahadur for possession over the aforesaid portion of the house on payment of Rs. 1100/- on the basis of the award. An objection was taken in the written-statement by the applicants that the market value of the property in suit was more than Rs. 2,000/-and, therefore, the learned Additional Munsiff had no jurisdiction to try it. The suit was valued at Rs. 1100/- which is the amount which is to be paid by Himmat Bahadur to get possession over the property under the award. The learned Additional Munsif held that the suit is properly valued, According to the plaintiff respondent, the suit is one for specific performance of a contract of sale foiling under sec. 7 (x) (a) of the Court-fees Act. In my opinion, the suit cannot be regarded as a suit for specific performance of an agreement for sale as the award did not authorise Himmat Bahadur to purchase the property whenever he chose to do so. It only gave him a right to purchase it in case the descendants of Prag Narayan wanted to sell it to anyone else. The suit is in effect a suit for possession over immovable property falling under sec. 7 (v ). It may also be regarded as a suit for specific performance of an award falling under sec. 7 (x) (d) of the Court Fees Act. In either case the suit has to be valued in accordance with the market value of the property in suit. A preliminary objection was taken that in view of the ruling in Purohit Swarup Narain Vs. Gopi Nath (i), this revision is nor, competent. In my opinion, this preliminary objection has no force. Under sec. 11 of the Suits Valuation Act, even if an objection is taken in the court of first instance at the very earliest opportunity and it is overruled by the trial court, the appellate court cannot set aside the trial court's order without coming to a finding that the under-valuation has prejudicially affected the disposal of the suit on merits. This provision is somewhat similar to the provision contained in sec. 21 of the Code of Civil Procedure with regard to an objection about the territorial jurisdiction of the court. The decision of a learned Single Judge of this Court in Firm Purushottam Das Samaldas Vs. Firm Bilasrai Mannalal (2) is, therefore, applicable and the order is revisable. I accordingly set aside the order of the learned Additional Munsiff and direct him that he shall frame an issue about the market value of the property in suit and decide it before proceeding further. If he finds that the market value of the property is above the pecuniary limits of his jurisdiction, he shall return the plaint for presentation to the proper court. . ;