Propriety of decision taken by principal ministerial officer.

This Civil Revision Petition raises a question of court-fee The facts necessary for appreciating the question raised may be briefly narrated. The plaintiffs filed O.S.No.81 of 1949 on the file of the Court of the Subordinate Judge, Kakinada, for recovery of possession of the properties described in A and B schedules annexed to the plaint. We are not concerned with the A schedule property, as nothing turns upon it in the revision. In regard to B schedule property, it is alleged in the plaint that the plaintiffs’ paternal grandfather, late Bendapudy Venkataratnam, purchased the property described in the B schedule for a sum of Rs.14,000 from the defendants under a registered sale deed, dated 16th January, 1945. In paragraph 17 of the plaint it is stated that

“The plaint B schedule property is an undivided southern half of a big plot and so the plaintiffs and the defendants are co-sharers of the big plot. The plaintiffs are entitled to have their southern half separated and to be put in separate possession of the same. As regards the said property, the plaintiffs pray for a decree for separation of the same and to put them in separate possession after evicting the defendants therefrom.”

The schedules are not before us, and we presume that they are described by boundaries and also by extent. The B schedule property was valued under section 7, clause (v) of the Court-Fees Act for purposes of jurisdiction at a sum of Rs.20,000, and a court-fee of Rs.100 is paid under Article 17-B of Schedule II of the Madras Court-Fees Amendment Act. The plaint was presented on 22nd June, 1949. On 24th June, 1949, the plaint was returned signed by the Principal Subordinate Judge with an endorsement that the ‘deficit Court-fee should be paid’. The endorsement reads:

“When, the purchaser, the plaintiffs’ paternal grandfather has not entered into joint possession of the property purchased by him as per B schedule, the relief for partition and possession should be valued under clause (v) of section 7. Returned. Time 7 days.”

On 2nd July, 1949, the plaint was re-presented with an explanation that the valuation of the B schedule property and the court-fee paid thereon was correct. On 6th July, 1949, it was again returned with an endorsement, signed by the Subordinate Judge, as follows:-

“The allegations in paragraphs 11 to 16 clearly show that the property as per schedule B was not put in joint possesion of the plaintiffs or their grandfather and so the plaintiffs cannot be said to be in constructive possession of their share with their co-sharers. Hence the relief for partition of the B schedule property also has got to be valued under section 7, clause (v) of the Court-Fees Act. Returned. Time 7 days.”

It was again re-presented with an explanation further elucidating the circumstances under which the relief was valued and asserting that the valuation put upon it by the plaintiffs was correct. The Sheristadar scrutinised the plaint again and made an endorsement “presented in time and stamped aright. May be filed”. This endorsement was signed by him. Below the endorsement of the Sheristadar the following endorsement appears, “Issue summons to defendants for issues 17th August, 1949”. This was signed by the Subordinate Judge himself. On 10th November, 1949, the office pointed out that the B schedule property was zamindari zeroyati land of 38 acres and 2½ cents in extent, specified within boundaries, and that, as the same was a specific plot within specified boundaries, ad valorem court-fee should be paid on the market value in accordance with the ruling in Kesanna v. Boya Bala Gangappa1. Notice was given to the plaintiffs’ advocate to show cause why he should not pay court-fee on the market value. On 20th December, 1949, after hearing the arguments of the pleader for the plaintiffs, the learned Subordinate Judge passed an order in the following terms:

“So far as the B schedule land is concerned, the prayer is for possession of the southern Ac. 38-2½ ce