In a simple suit for partition, where there is no dispute over the plaintiff's title or share, the valuation of the entire property is the valuation of the suit for the purpose of jurisdiction, and not the value of the plaintiff's share.

R. N. MISRA, J.

( 1 ) DEFENDANT No. 1 in a suit for partition has carried this appeal against the affirming judgment and decree of the learned Subordinate Judge.

( 2 ) PLAINTIFF filed the suit on 17-12-1973 in the court of the Munsif at Anandapur alleging that Abhimanyu Sahu died leaving behind him four sons, namely, bikala, Gananath (defendant No. 2), Raghu and Netrananda (plaintiff ). Bikala is dead and his son Babaji is defendant No. 1. Raghu died leaving his widow (defendant No. 3) and two daughters, namely, Hadiani and Paluni. plaintiff demanded his share in the joint family properties and as defendants have not partitioned the same in spite of demand, he instituted the suit asking for one-fourth share in the property. In the plaint he valued the entire property at Rs. 12,000/- and his one-fourth share at Rs. 3,150/- though on the total valuation of Rs. 12,000/- the one-fourth share should have been calculated at Rs. 3,000/ net (see para 8 of the plaint ).

( 3 ) PARAS. 4 and 5 of the written statement of the defendants challenge the valuation and maintain that the suit was beyond the pecuniary jurisdiction of the court. No issue on the question of jurisdiction was, however, framed. Defendant No. 1 lost in both the courts below. When the second appeal came for hearing before a learned single Judge the question of want of pecuniary jurisdiction of the trial court to entertain the suit was agitated. The learned single Judge observed :-

". . . . . . Mr. Sahu contends that the valuation of this suit for the purpose of jurisdiction is Rs. 35,000/- and odd, which is the valuation of the entire suit property, and not the valuation of the share claimed by the plaintiff. But Mr. Rao, the learned counsel for the respondents, submits that the valuation of the suit for the purpose of jurisdiction would be the valuation of the share claimed by the plaintiff and not the value of the entire property for which the partition is sought. On the above question divergent views have been expressed in the decisions of this Court reported in (1962) 28 Cut LT 433 (Chadhai behera v. Parbati); (1946) 2 Cut WR 949 : (AIR 1977 Orissa 161), (Smt. Nakhya-tramali Debi v. Chandrasekhar Pattnaik) and the decision reported in (1976) 42 Cut LT 1247 : (AIR 1977 Orissa 85), smt. Durga Deo v. Smt. Pirobati Dei ). There is also divergence of opinion on this point in the decisions of some other High Courts.

The decision reported in AIR 1925 Cal 320 (Rajani Kanta Bag v. Raja Bala dasi) supports the contention of Mr. Sahu for the appellant, whereas the decisions reported in AIR 1953 Pat 342 (Bhairab Chandra Rao v. Sat Narain Sarkar); AIR 1947 Mad 273, (Kalander v. Kunhipakki) and air 1962 Bom 4 (Sab-astian Antonio Texeira v. Rodolf Min-guel texeira) support the view contended by Mr. Rao for the respondents. Certain other important questions are also involved in this case. I, therefore, deem it fit and proper to refer this second ap\peal to a division Bench of this Court for its disposal in accordance with law. "

That is how the Second Appeal has been placed before us.

( 4 ) MR. Rao for the respondents maintained that the question of want of pecuniary jurisdiction could not for the first time be raised in the second appeal. Section 21 of the Civil P. C. barred objection as to the place of suing being raised at a later stage in the suit or in the appellate court. Until insertion of sub-section (2) of Section 21 by the Amending Act of 1976, there was no provision regarding a similar power with reference to pecuniary limits of court's jurisdiction. There is no dispute that the amending provision would not apply to the present appeal. There is a similar provision in the Suits Valuation Act in section 11 thereof which provides :--

" (1) Notwithstanding anything in Section 578 of the Civil P. C. 14 of 1882, an objection that by reason of the overvaluation or undervaluation of a suit or appeal a Court of first instance or Lower appellate Court which had not jurisdiction