JUDGMENT
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 & 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.
3. 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.
4. 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.
5. When the record of the case was sent back to the learned Munsif he heard the parties on issue No.5 and decided it in favour of the plaintiff and against the defendants on 22-11-77. As against this order also the Municipal Council Udaipur filed a revision petition which is S B. Civil Revision Petition No. 32/78. As the revision petition No. 59/77 against the decision of the learned Munsif allowing amendment is closely connected with S.B. Civil Revision No. 32/78 against the decision of the learned Munsif on issue No. 5, I think it proper to decide both of them by one single order.
6. I have carefully perused the record and heard Mr. H M. pareekh for the Municipal Council Udaipur and Mr. Lekhraj Mehta learned Counsel for the non-petitioners.
7. The main question that calls for decision in these revision petitions is whether court-fee on,1/2 of the market value of the disputed property is payable on the plaint of the suit filed by the respondents against the Muncipal Council Udaipur for grant of perpetual injunction to the effect that the defendants may be restrained from ousting the plaintiff-respondents from possession of the property in dispute and from causing any interference with their rights to own and possess it.
8. There is no dispute about the legal position that for decision of the question relating to the amount of court fee payable on a plaint, the averments in the plaint alone are to be taken into consideration and assumed to be correct and the Court while deciding such a dispute as to the provision of the Court Fees Act under which a plaint is taxable with fees is neither concerned with the pleas raised in the written statement nor with the maintainability of the suit as frarmed, nor with the claim which is ultimately capable of being decreed. In nut-shell it may be observed that in a particular case, the plaint as it is, has to be taken into account without reading into it any thing that is not stated therein. Hence it is necessary first to see the relevant allegations made in the plaint of this case. From a bare look in to para No, 2 of the plaint it is evident that the plaintiff claimed to have been in possession of the disputed land as owners thereof on the ground of having purchased in from Tej Singh defendant No. 2 vide registered sale-deed dated 18-9-1965. Then in para No. 4 of the plaint the averments are that the Municipal Board Udaipur maliciously caused proceedings under Section (sic) of the Land Revenue Act to initiate against them in the court of Tehsildar Girva for their ejectment from the land in dispute and the. plaintiffs reasonably apprehended that they may be dispossessed at any time and so the defendants may be restrained not to out the plaintiffs from possession of the property in question and from interfering with their peaceful and continuous possession thereof. In the written statement filed on behalf of the Municipal Council Udaipur, it has been specifically denied that the plaintiffs are owners of the property an dispute and are in possession thereof Para No 2 of the written statement is quoted below in extenso to show that the title of the plaintiffs to the property in disbute is categorically denied by the Municipal Council Udaipur :
okn tcfd dye ua02 es fooknxzLr Hkwfe izfroknh ua02 ds feyfd;r vkSj dCts dh Hkwfe gksuk Lohdkj ugh u fooknxzLr Hkwfe ij izfroknh la02 ds iwoZtks ds le; ls dCtk gksuk Lohdkj gS u oknhx.k }kjk jftLVMZ fldkoukes ds v/kkj ij Hkwfe [kjhnuk gh Lohdkj gS ;g Hkh Lohdkj ugh fd fooknxLr Hkwfe es cuk edku oknhx.k ds LokfeRo o dCts dk gS A
Hence in the substance the allegations made in the plaint are that the Municipal Council is denying the title of the plaintiffs to the property under controversy and is taking steps to eject them from there. This kind of suit is contemplated by clause” (a) of Section 26 of the Act which reads as follows :
26. Suits for injunction.-In a suit for injunction.
(a) where the relief sought is with reference to any immovable property and where the plaintiff alleges that his title to the property is denied, fee shall be computed on one-half of the market value of the property or on rupees three hundred, whichever is higher;
…
9. The contention of the learned Counsel for the plaintiff-respondents that the piaintiffs did not allege in their plaint that their title to the property is denied by the Municipal Council Udaipur is, therefore, not tenable in view of the substance of the claim that is gathered from a bare perusal of the whole of the plaint The allegations in the plaint that the Municipal Council Udaipur has caused proceedings under Section 91 of the Land Revenue Act to be initiated against the plaintiff respondents in the Court of Tehsilder Girva clearly indicate and give rise to as legitimate inference that the title of the plaintiffs to the property in dispute has been denied and they are treated as trespassers over the land In this view of the matter I am of the view that for the purpose of payment of court-fee the suit clearly falls within the purview of clause (a) of Sections 26 of the Act and the court-fee payable on the plaint is 1/2 of the market value of the property or Rs. 300/- whichever is higher.
10. It has been strenuously urged before me by Mr. Lekhraj Mehta learned Counsel for the plaintiff-respondents that after the plaint was amen sed there could not arise any question of insufficient court fee or lack of jurisdiction because the plaintiffs clarified through the amendment that for the relief sought in the suit they did not allege that their title thereto is denied. In support of his alove contention Mr. Lekhraj Mehta has placed reliance on the following authorities: (1) v. P. Sugar Works v. G.I. of Scamps. U P. AIR 1968 SC 102. (2) Chief Inspector of Stamps v. VP. Sugar Works AIR 1957 All. 242. (3). Jai Krishna v. Babu Ram (F B.) (4) Nemi Chand v. Edward Mills Co . (5) Goverdhandas v. Calcutta Municipality AIR. 1970.S.C. 539. (6) Sayed Ahmed v. State . (7) H R. Patel v. Venka-talakshamma AIR 1955 Mysore 65 (8) Shobha v. Mahale AIR 1969 Bom. 370 (9) Nanikutty Amma v. K K Nair . (10) Kundanlal v. Srinarainlal . I have perused the aforesaid authorities and considered his contention The authorities relied upon by the learned Counsel for the respondents are distinguishable on facts on the construction of the relief claimed by the plaintiffs in their amended plaint also I may observe that they have in fact alleged that their title to the property is denied by the Municipal Council Udaipur It is duty of the court to look to the whole of the plaint and not to allow itself to be misled by the language used in it for evading the payment of proper court fee by suppressing the real purpose of the suit In the amendment of the plaint also the allegations in Para No. 3 are that disputed property was formerly owned and possessed by Tejsingh defendant No. 2 who later on sold it away to the plaintiffs vide registered sale-deed dated 18-9-65 and since then the plaintiffs have been continuously in possession thereof and also (sic)h, possession of a ‘kacha’ house constructed thereon. In para No. 6 of the amended plaint the plaintiffs claimed title to the property in question by adverse possession against the defendant No 2 In para No 7 of the amended plaint the plaintiffs further alleged that the Municipal Council Udaipur defendant No. 1 has been taking steps to rject the plaintiffs from the land in dispute on the ground of their being trespassers over it. Despite its former decision that the land belonged to the plaintiffs’ predecessor in title I.e. Tejsingh defendant No. 6 Hence the amendments made in the plaint do not alter the nature of the suit and it cannot be said that on account of amendments made in the plaint the plaintiffs do not allege that their title to the property is denied by the Municipal Council Udaipur. In this view of the matter the revision petition No 52/78 (S.B Civil Revision No 32/78 Municipal Council Udaipur v. Charandas (sic)” 37 others) is accepted and the case it sent back to the learned Munsif for decision as to what court fee would be payable on the plaint having regard to the one half value of the subject matter of the suit i e. the property in dispute. If the learned Munsif finds that 1/2 of the market value of the disputed property exceeds pecuniary jurisdiction of the court of the Munsif he shall have to return the plaint to the plaintiffs for presentation to the proper court having jurisdiction in the matter. In the circumstances of the case I pass no order as to costs. The revision petition No. 59/79 S B. Civil Revision No. 59 of 1970 Municipal Council Udaipur v. Charandas and 37 Ors. against the order of the learned Munsif allowing amendment of the plaint is dismissed.
