1988 MLD 864 (PLP)

This revision application is directed against the judgment and decree passed by 1st Additional District Judge, Hyderabad in Civil Appeal No. 39/74 on 10 11‑1980, whereby he set aside the judgment and decree in Suit No. 5/1973, dated 19‑12‑1973 passed by the IInd Class Civil Judge, who had dismissed the suit filed by the present respondents.

2. The relevant facts are that the present respondents had filed suit for possession, mesne profits and injunction against the present applicants claiming that the plot of land measuring 5000 square feet in the west of their bungalow in the Unar Para had been purchased by their father in auction from the Settlement Department and a portion of the same had been given to the mother of the present applicants for residence for a temporary period, but after the death of Mst. Izzat, the present applicants were alleged to have trespassed upon the said land. The applicants had resisted the said suit and denied the ownership of the respondents and claimed that it was undervalued. They had however, not raised a specific plea that the area in their possession was different from the one claimed by the plaintiffs. 3. 7 issues were framed and evidence was recorded on both sides. The Civil Judge came to the conclusion that the suit was undervalued as the plaintiffs had shown the defendants as trespassers, therefore, it has to be valued on the basis of real value and not the rental value. It was calculated by the plaintiffs to be valued at a total sum of Rs. 600 only. The Civil Judge did not calculate the value of the land. The Civil Judge also came to the conclusion that the land had not been specified in metes and bounds. He, therefore, dismissed the suit.

4. The respondents then filed an appeal and the 1st A.DJ. of Hyderabad allowed the said appeal and came to the conclusion that although the value of the suit was not correctly valued, but the identity of the property was clear and the ownership has been sufficiently proved by the respondents.

5. Mr. Mohammad Sharif submitted that once the A.D.J. had come to the conclusion that the finding of the Civil Judge in respect of valuation of the suit was proper then it was necessary to value the suit properly and pay the court fee according to its value and it had also to be determined that if the market value of the property was Rs. 15,000 only then alone the suit, as originally filed in the Court of the IInd Class Civil Judge, would have been competent otherwise the suit had to be sent back to the Court of competent jurisdiction for trial, if the learned counsel for the applicants appears to be correct. The valuation of the suit I was necessary to be determined on the basis of evidence brought on record by the respective parties. The same had not been done and, therefore, I remand the case' A back to the appellate authority to determine the value of the suit and in case the value comes to less than Rs. 15,000 then it would be treated that the IInd Class l Civil Judge Tando Allahyar had correctly dealt with the suit and the ultimate decree passed by the 1st A.D.J. Hyderabad would be then final as the finding in respect of the identity of the ownership of the property as found by the appellate Judge/appellate Court could not be seriously challenged because he had arrived at that conclusion after considering all these documents which were on record. Mr. Sharif had also not challenged that finding.

6. However, if the appellate Court comes to the conclusion that the value of i the suit on the day that it was filed in January, 1973 was more than Rs. 15,0(Xl then the whole suit shall have to be sent back to the appropriate competent Court, which had the jurisdiction to hear the suit of more than Rs. 15,000 and he will then decide the whole suit afresh irrespective of the finding of the 1st A.D.J. or the finding of the IInd Class Civil Judge on the other issues.

7. Mr. Gulab M. Rang for the respondent concedes to the position that the value of the suit had to be correctly as curtained and proper court‑fee has to be I paid by the respondents and, thereafter it could be determined as to whether the IInd Class Court or 1st Class Court could deal with the suit. This revision application is, therefore, disposed off is the above terms. M.Y.H./L‑16/K. Order accordingly.