Patna High Court
Ujra Mohan Chaudhuri vs Lachhmi Prasad Chaudhuri And Ors. on 5 February, 1920
Equivalent citations: 56IND. CAS.422
ORDER
1. This is a Court-fee matter.
2. The question involved is of considerable importance and in our view should be decided by a larger Bench. The point is this Whether a suit for declaration of title as adopted son and for possess ion is a suit that comes within Section 7, Clause (IV), Sub-clause (c) of the Court Fees Act, or within Section 7, Clause (V) of that Act. The learned Registrar has taken the view that it comes under Section 7, Clause (IV), Sub-clause (c) of the Court Fees Act, Mr. Sushil Madhab Mullick on behalf of the appellant has argued that this view is erroneous inasmuch as every suit for possession must necessarily involve adjudication of the title of the plaintiff. He says that in every suit for possession the plaintiff must prove his title, and that consequently he must necessarily ask for declaration of his title. In my view the question depends on whether the suit is a suit that comes within Section 42 of the Specific Relief Act. If it is a suit that comes within Section 42 of the Specific Relief Act, then it must come under Section 7, Clause (IV), Sub-clause (0) of the Court Fees Act.
3. It is true that every suit for possession does not involve a question of title in the sense that the plaintiff in an ejectment suit must prove his title. But that is not the came here. Where, however, a challenge is directly thrown on the title of the plaintiff, and the plaintiff comes to Court in order to meet that challenge, it is a suit clearly under Section 42 of the Specific Relief Act, and it would accordingly, in my view, come under Section 7, Clause (IV), Sub-clause (c) of the Court Fees Act. In this case it appears to me that there was undoubtedly a challenge thrown on the plaintiff's title. He came to Court to meet that challenge, He asked for a declaration that he was the adopted son of somebody and for consequential relief, that is, for possession. It is not the same thing as an ordinary suit for possession where the question of title incidentally arises. In my view the learned Registrar has taken an entirely correct view of the matter, but as the question is always coming before us in one garb or another, we think that it ought to be finally settled by a larger Bench. Place the record before the learned Chief Justice for necessary orders.
4. On 4th February 1920 the learned Chief Justice (Sir Dawson Miller, Kt.) declined to refer the matter to a Full Bench and passed the following
5. In my opinion this decision is correct. There is no other decision in conflict with the above and I do not think it is necessary to refer it to a Full Bench.
6. The case was again placed before the Division Bench consisting of Mr. Justice Das and Mr. Justice Adami, which on the 5th February 1920 passed the following
7. This matter now comes before us for decision. My learned brother Mr. Justice Foster and myself expressed our view in the order which we passed on the 29th January last. We thought that the matter was of general importance and should be settled by the decision of a larger Bench. We directed that the papers should be placed before the learned Chief Justice for the necessary orders. The learned Chief Justice does not think that there is any necessity to refer the matter to a Full Bench. My learned brother Mr. Justice Adami agrees with the view which I have already expressed in the case. Therefore, the order must be that the decision of the learned Registrar is right and that the appellant must pay the additional Court-fees on the plaint in the lower Court. We give him three weeks time to do so.