K.D.SHARMA, J. - (1.) S .B. Civil Revision No. 59/77 by Municipal council Udaipur against Charandas and Ors. and S B Civil revision No 32/78 by Municipal Council Udaipur against Shri Charandas and others are inter connected with each other and do arise out of one and the same suit filed by Shri Charandas and other 37 persons against the Municipal Council Udaipur and Tej singh for grant of perpetual injunction restraining the defendant No 1 from ousting the plaintiffs from possession of their house and land in dispute and from causing any Interference with their ownership and possession of the same.
(2.) THE relevant facts giving rise to these two revision petitions may be briefly stated as follows : Shri Charandas and 37 persons instituted a suit against the Municipal Council Udaipur and Shri Tej Singh for grant of perpetual injunction in the court of the learned Munsif Udaipur on 17 -4 -69. The averments in the plaint were that the plaintiffs owned and possessed 7 Bighas and 15 Biswas of Abadi land in city of Udaipur after purchasing it from Tej singh defendant No 2 vide registered sale deed 18 -9 -65, a 'kacha' house covered by Kalu has been constructed in the said land and the 'kacha' house also belongs to the ownership and possession of the plaintiff. On 2 -8 -62 a complaint was lodged against the plaintiffs that they had constructed 'Kot' on the said land Upon this complaint the Chairman Municipal Council Udaipur directed an inquiry to be made into the allegations. The Commissioner and the Revenue Officer Municipal Council Udaipur throughly inquired into the complaint and passed an order that the disputed land did not belong to the Municipal Council. This order was confirmed by the Chairman Municipal Board vide his order dated 5 -6 -1966 Despite this order the Municipal Council Udaipur caused proceedings to be initiated against the plaintiffs under Section 91 of the Land Revenue Act in the Court of Tehsildar Girva for their unlawful dispossession from the land. As the plaintiffs hive been continuously in peaceful possession of the land in question as owners thereof and as the Muncipal Council Udaipur is bent upon dispossessing them from is they prayed for grant of perpetual injunction against the defendants restraining them from ousting the plaintiffs from the possession of the disputed land and from causing any interference with their ownership and possession thereof In the alternative the plaintiff, alleged In their plaint that if their title to the land in dispute is not established they hive acquired ownership over it by adverse possession since 1942. The Municipal Council defendant No. 1 resisted the suit of the plaintiffs on several grounds which are enumerated in the written statement filed on its behalf. The main grounds of the defendant No. 1 on which the suit was contested are that the land in question was never owned and possessed by the plaintiffs or their alleged predecessor -in -title and that it belonged to the Rajasthan Government and has now legally vested in the Municipal Council Udaipur. It was further contended that the market value of the land in dispute is not less than six lacs rupees and the plaintiffs ought to have paid court fees on behalf of the value of the land under Section 26A of the Rajasthan Court Fees and Suits Valuation Act, 1961, hereinafter referred to as the Act and the suit if so valued was beyond the pecuniary jurisdiction of the learned Munsif.
(3.) UPON pleadings of the parties the learned Munsif framed as many as 4 issues in the first instance but later on 15 -7 -72 he struck another additional issue which reads as follows: Issue No, 5 : - -Whether the suit has been instituted on insufficient court fee? As the aforesaid issue No. 5 was a legal issue, the learned Munsif proceed to decide it in the first instance and heard arguments on it but before he could decide this istue an application for amendment of the plaint was filed by the plaintiffs which was accepted by him vide his order dated 4 -2 -1977.Aggrieved by this order the Municipal, Council Udaipur filed a revision petition in this Court which is S B Civil Revision No 56/77. This revision petition was heard by Hon'ble S N. Modi J. who was pleated to have passed the following order on 11 -10 -77 : Heard learned Counsel for the patties. It appears from the record that the learned Munsiff heard arguments on issue No. 5 but before deciding it an application for amendment of the plaint was filed which was allowed by him. Since the decision of the learned Munsif allowing amendment is intimately connected with issue No. 5 it is desirable that the learned Munsif be directed to give his finding on issue No 5 irrespective of the amendment as well as taking into consideration the amendment allowed by him. The main question which will fall for determination in deciding issue No 5 before the learned Munsif would be whether or not the suit before amendment as well as after amendment falls within the purview of Section 26 (a) or Section 26(c) of the Rajasthan Court Fees and Suits Valuation Act, 1961. Let the record of the case be sent back to the learned Munsif with the direction to rehear the parties on issue No.5 and decide the same within fifteen days from the date of hearing of the arguments. The arguments will be heard by the Munsif on 24th October, 1977. The parties are directed to appear before that court on 24.10.77 fully prepared with the case. The record be sent back to the learned unsif immediately. ;