1988 PLP 67 (CLC)

Prematha Nath Chowdhury v. Kamir Mondal P L D 1965 SC 434 cited. Z. Mehfooz Khan for Petitioner. K.G. Sabir for Respondents Nos. 5, 7 to

17. Date of hearing: 14th June, 1986. This revision petition is directed against the judgment and order of Addl. District Judge Nowshera, dated 12‑11‑1981 whereby on appeal filed by the defendants be set aside the judgment and decree of Civil Judge Nowshera dated 17‑5‑1980 in which the plaintiff petitioner was granted a preliminary decree for possession by partition as .prayed for in the plaint. Facts of the case briefly stated are that the petitioner herein instituted suit for possession by partition of an area measuring one kanal ten marlas out of an area measuring 6 kanals 14 marlas bearing Khasra No.7641/3100 situated in Urmar Payan Tehsil Nowshera against Momeen and sixteen others. In the suit Khasra No. Central Government was recorded as owner of 1 kanal 10 marlas which was allegedly transferred in favour of. the plaintiff‑petitioner. This property is now part of the village Abadi and has lost its agricultural character. The defendants in their joint written statement raised several legal and factual objections to the maintainability of the suit and jurisdiction of the civil Court. It was stated that the Central Government never remained in possession of the suit property and that private partition had taken place among the co‑sharer and that some of them had purchased the land allotted to the co‑sharers where-after they raised construction over it as back as in the year 1942‑

43. Non‑joinder of necessary parties and several other questions were raised in resisting the suit. The learned trial Judge framed as many as twelve issues arising out of the pleadings of the parties. After recording evidence of the parties the plaintiff's suit was decreed as prayed for in the plaint. Aggrieved by the judgment and decree, two appeals i.e. Appeal No.68/13 and 67/13 were filed by the defendants. Both these appeals were taken together by the learned Addl. District Judge, Nowshera. The appeal of Madat Khan etc. bearing No.68/13 was dismissed as barred by time. However the appeal of Musharraf Khan etc. bearing No.67/13 was accepted, the finding of the learned trial Judge on issue No.6 was set aside and the case was remanded to the trial Court for decision afresh in the light thereof. The learned counsel for the petitioner contended that in view of the finding of the learned trial Judge on issue No.6 the order of remand was unwarranted under the law. He further contended that as laid down in Pramatha Nath Chowdhry v. Kamir Mondal P L D 1965 Supreme Court 434 order of remand is not to be lightly passed. It was further contended that this is a suit for partition by a co‑sharer and under Article I of Schedule I of the Court Fees Act ad valorem Court fee on the valuation of the subject‑matter of the suit is not leviable. With regard to the valuation of the suit property he further contended that both the parties have given the approximate value of the houses constructed over the suit site but argued that there is a vacant site available on the spot and the petitioner can be given his share out of it which will not disturb the persons who have raised construction over a portion of the joint property to the extent of their entitlement. On the other hand the learned counsel for the respondents argued that issue No.6 which pertains to the value of the suit property for the purposes of Court fee is a legal issue determination of which was to be made by the Court and that any concession by the parties or their counsel was not to absolve the Court of its duty to give its finding specially when it was going to the root of the case and was to determine the jurisdiction of the Court. The. learned counsel further argued that the plaintiff has admitted that he was out of possession of the property and that the defendants have constructed about 15/16 houses in the suit Khasra No. at a considerable cost without objection from any of the recorded co‑sharers since the year 1942‑

43. Hence in the circumstances the plaintiff was to pay ad valorem court‑fee on the subject‑matter of the suit. He further argued that even if the valuation given by the plaintiff is accepted it is in excess of the pecuniary jurisdiction of the trial Court. After hearing the learned counsel for both the parties and going through the evidence on the record there appears no substance in the contentions raised by the learned counsel for the petitioner. Admittedly when the suit property has attained the character of residential property, suit for its partition is competent only in the Civil Court. The learned trial Court on the allegation of the parties has framed apart from other issues the issue pertaining to the valuation for the purposes of Court fee and jurisdiction which is as under:‑ Whether the suit is bad for purposes of court‑fee? Both the parties have led evidence on the issues in which the plaintiff admitted the value of the construction raised on the suit land to be Rs.5/6 lacs of which some is 40/50 years old while the defendants have alleged that the value of the suit property is more than that. There is also objection raised by the defendants that the plaintiff is out of possession since 1942‑43 and that they have raised construction over the site without objections since then. In, this view of the matter the determination of the issue which is an issue of law, was the duty of the Court specially when the question raised also pertained to the payment of court‑fee. Any concession made by the parties for they having not seriously stressed the objection would not absolve the Court of its duty of giving finding in the light of the evidence available on the file. Such finding was further necessary for determining the competency of the Court regarding the pecuniary, jurisdiction in trying the suit. The learned counsel for the respondents pointed out that after the remand a Commission has been appointed by the Court who has submitted his report with regard to the valuation of the suit property, hence the order of remand at this stage needs no interference in revisional jurisdiction. Whatever may be the position the order of remand passed by the learned Addl. District Judge in the circumstances of the case stated above needs no interference. The question whether ad valorem court‑fee would be leviable on the plaint on the facts and circumstances of the case is left open for the trial Court for determination in the light of the evidence of the parties which is available on the record. There is no merits in the revision petition which is dismissed. The parties are however, left to bear their own costs. S.Q./555/P Petition dismissed.