KANDHAI MAHTON Vs. PRASAD MAHTON

JUDGEMENT

(1.) This appeal by the plaintiffs is directed against the order of the Court of appeal below returning the memorandum of appeal filed before that Court to be presented before a proper Court.

(2.) The plaintiffs had filed a suit in the Court of the Additional Subordinate Judge, 2nd Court, Patna, for partition of their one-fourth share in the properties in suit. The suit was valued for purposes of jurisdiction at Rs. 7,929/12/- as appears from paragraph 11 of the plaint which is as follows:

(3.) The learned Advocate for the appellants contended that the order of the Court of Appeal below was erroneous. In support or his contention, he relied on the cases of 'DUKHI SINGH v. HARIHAR SHAH', 5 Pat L J 540 and 'SHEVANTIBAI v. JANARDHAN RAGHUNATH', 71 Ind App 142 (PC). Both these cases, in my opinion, are distinguishable. In 5 Pat L J 540, the plaintiff had valued the suit for purposes of jurisdiction at Rs. 1,915/6/2 representing the value of his own shar in the properties in suit. The trial Court had fixed the valuation of the suit for purposes of court-fee and jurisdiction at Rs. 1,700/- which was one-thirteenth of the value of the entire properties which were the subject-matter of the suit. The trial Court had in that suit issued a temporary injunction against the defendant No. 1 of that suit restraining him from proceeding with the execution of the decree challenged in that suit. Defendant No. 1 had filed a miscellaneous appeal before the High Court against that order. A preliminary objection was raised by the plaintiff-respondent that a miscellaneous appeal should have been filed before the lower Court and not before the High Court. The objection was upheld mainly on the ground that the order of the trial Court fixing the value of that suit for purposes of jurisdiction, which had not been challenged and had become final, would determine the forum of appeal.