(1) This is an application against the order of the trial court (Munsiff Billawar) dated 26-6-71 retuning the plaint to the plaintiff for presentation to the proper court. The plaintiff filed an appeal before the District Judge, Kathua against this order. The District Judge also affirmed the order of the trial court vide his order dated 4-7-1972.

(2) The suit out of which this application arises was a-suit for pre-emption and possession of the land in suit. According to the allegations of the plaintiff in his plaint, he sought to exercise his right of prior purchase over the land sold to the defendant-vendee on the ground that he had a preferential right to purchase the property. The land was sold to the defendant vendee by the vendor for a sum of Rs 400/-but the vendee had constructed a house on the land before the sale and after the agreement to sell was executed in his favour by the vendor. It may be noticed here that the defdt. vendee constructed a house over the land before his title was completed by execution of the sale deed. At the time when the vendee constructed the house, the vendor had given the possession of the land to the vendee but had not yet parted with the title of the property. Subsequently however the vendor sold the land to the vendee defendant for a sum of Rs 400/- The court below assessed !the value of the house at Rs. 4420/- and adding the value of the land, as admitted in the sale deed namely Rs. 400/ , found that the value of the suit was Rs. 4,820/ and therefore the suit fell beyond the pecuniary jurisdiction of the court.

(3) In support of the rule Mr. Tirath Singh contended that this being a suit for pre-emption, it had to be governed by a special consideration because the pre-emptor has a right to be substituted for the vendee. What was sold to the defendant-vendee was only the land and not the house which was an independent act having nothing to do with the same. If the plaintiff was to be substituted for the vendee then he could claim only the land which was purchased by the vendee. In the circumstances the claim of the plaintiff would be confined to the land alone and not to the house. The question of reimbursing the defendant for the house or for the improvements made in the garden would be a claim in equity which may be determined by the court on equitable consideration at the time of the trial but will not form the subject matter of the suit for the purpose of fixing the valuation either to compute the court-fee or to fix the jurisdiction and valuation of the suit.In support of his argument the learned counsel has relied on a single Bench decision of the Punjab High Court in the case of Sansar chand Vs Ram Lal and anr. reported in AIR 1959 Punjab 252 The learned Judge in this case after considering the entire case law on the point observed as follows: -

"¦..It is obvious that his being a right of substitution he is to pay court-fee on the property as regards the rights to which he claim to be substituted for the original vendee. The claim of a defendant-vendee in a suit like this for compensation for improvements is an equitable claim, and in certain circumstances, though not always, a plaintiff-preemptor may be a decree of a court be compelled to take substitution for the original vendee subject to, in equity, compensating the original vendee for improvement.

X X X X

(4) It would be manifestly illogical in such cases to force the plaintiff to pay court-fee arising out of an equitable claim of a defendant. The demand of court-fee as in these cases does not directly arise out of the claim of the pltff. It is the result of the equitable claim of the defendant for compensation against the plaintiff, That the defendant foregoes the improvement itself and takes its value from the plaintiff appears to me not to justify burdening of the pltff, for court-fee in connection with such a claim..... ..."

(5) Mr Mahajan appearing for the other side has not been able to

Click Here to Read the rest of this document