Judgment

S. P. BHARUCHA

( 1 ) THE appellants were the plaintiffs in a suit filed against the first respondent in the court of the Munsif I st, Gaya (being TS No. 278 of 1971. It was alleged in the plaint that the appellants were the sons and daughters of one Jaikishun Lal who died on 1/7/1962, leaving them behind as his sole heirs. The late Jaikishun Lal had purchased the suit property from the defendant under a registered sale deed dated 30/4/1960. After the late Jaikishun Lal became the owner of the property, the first respondent had requested him to let the suit property to him on a monthly rental of Rs. 90. 00. The proposal was accepted and the first respondent was inducted as a tenant on 1/5/1960. On 18/5/1960, the first respondent had executed a "kirayanama" in favour of the late Jaikishun Lal in the aforementioned terms. The first respondent paid some rent to the late Jaikishun Lal and thereafter to the plaintiffs, the last of such payments having been made on 7/8/1962. The first appellant was a minor when Jaikishun Lal died. Upon attaining majority the first appellant had filed a petition for mutation of the Municipal Register in respect of the suit property. The first respondent had filed objections thereto, which had been rejected. The appellants were the owners of the suit property, the first respondent was their tenant and he was in arrears of rent. Being a defaulter he was liable to be evicted from the suit property. The appellants needed the suit property for personal use. For the purposes of jurisdiction and court fees, the suit was "valued at Rs. 1,080. 00 being the monthly rent of the house in suit for 12 months" and the appellants, on payment of court fees of Rs. 157. 50, prayed for the following reliefs:

" (I) That a decree for ejectment of the defendant from the house in suit be passed.

(II) That the defendant be ordered to vacate the house in suit within the period fixed by the court failing which the plaintiffs be put in possession over the house in suit through the processes of the court. "

( 2 ) THE first respondent filed a written statement in which he claimed that in April 1960 he was in need of money and had approached the late Jaikishun Lal for a loan. The late Jaikishun Lal had insisted that the security for the loan should be in the form of a sale deed with a clause for re-conveyance as also a "kirayanama" showing a monthly rent for the suit property of Rs. 90. 00. The first respondent being in urgent need of money had executed these documents under undue influence and compulsion. The first respondent denied that there was a relationship of landlord and tenant between the appellants and himself.

( 3 ) THE first respondent moved a petition in the trial court averring that the court "in view of the pleadings of the parties has to decide in respect of the title not incidentally but in a full-fledged manner" and, therefore, the appellants could not proceed with the suit unless ad valorem court fees on the market value of the suit property were paid. Reliance was placed upon the judgment reported in Sheo Shankar Prasad v. Barhan Mistry. Upon this petition, the trial court ordered thus: "in view of the pleadings of the parties. I am of the opinion that the court has to decide title, not incidentally but in a full-fledged manner. Under such circumstances, in view of the reported decision in Sheo Shankar Prasad v. Barhan Mistry the plaintiffs have to pay ad valorem court fee on the market value of the suit property. According (?) the plaintiffs are directed to pay ad valorem court fee on the market value of the suit property. If the plaintiffs are so advised, they may file petition for amendment of the plaint in the light of declaration of their title to the suit property. "

( 4 ) THE appellants carried the matter to the Patna High court by way of a civil revision application. The same was dismissed in limine. From the order thereon the appellants have preferred this appeal by special leave.

( 5 ) IT is necess