The main legal point established in the judgment is that a suit for declaration with a consequential relief for injunction requires proper valuation and payment of ad-valorem Court fees as per the provisions of the Court Fees Act and Suits Valuation Act.

Krishn Kumar Lahoti, J.

1. The petitioner has assailed order dated 1.10.2004 passed by IIIrd Civil Judge, Class-I, Jabalpur in civil suit no. 649-A/2003, by which an application filed by the defendants under Order 7 Rule 11 read with section 151 C.P.C., dated 28.2.2004 was disposed of by the trial Court with a direction to the petitioner/plaintiff to value the suit in accordance with section 8 of the Suits Valuation Act, 1887 for pecuniary jurisdiction and also to make payment of adequate Court fees on the plaint.

2. The trial Court found that the dispute is in respect of encroachment over 265 sq.ft. land on which defendants had constructed a wall. The plaintiff was not in possession of the property, but sought a decree of declaration and mandatory injunction. The plaintiff though valued the suit for Rs. 39,750/-, but had not paid ad-valorem Court fees. The trial Court also found that the relief of mandatory injunction was consequential in nature and cannot be granted until and unless suit for declaration is decreed. Holding present suit under Section 7(iv)(c) of the Court fees Act, 1870, the plaintiff was directed to value the suit and to pay adequate Court fees.

3. This order has been assailed by the petitioner on the ground that in fact the relief of mandatory injunction was not consequential in nature, but is an independent relief. He has drawn attention of the Court towards various paragraphs of the plaint and submitted that the suit for declaration and mandatory injunction was valued separately and fixed Court fees was rightly paid by the plaintiff. The petitioner placed reliance to the judgment of this Court in Waman Vishwanath Dhote Vs. Balwant rao and others AIR 1949 Nag 347, Smt. Sabina alias Farida Vs. Mohd. Abdul Wasit AIR 1997 MP 25, M. P. State Electricity Board and another Vs. Kamla Sharma and others 2003 (4) MPLJ 233 and submitted that this petition may be allowed.

4. Learned counsel for respondents supported the order passed by the trial Court. He has also referred various paragraphs of the plaint in support of his contention that the relief of mandatory injunction was consequential in nature and the trial Court has rightly directed plaintiff to value the suit properly and to make payment of court fees.

5. The case of plaintiff in nutshell is that father of plaintiff Sukumar Ghosh purchased a plot from Poonabai by registered sale deed dated 18.10.1943. At the time of purchase there was a tapra on the land, which was demolished and a house was constructed on the land. Plaintiff A.K.Ghosh is the only son of his parents and is sole owner of the property. The adjoining plot towards east side bearing plot no. 19 had belonged to one Sardar Amar Singh. The defendants has purchased the plot from Sardar Amar Singh. That before 3 or 4 months of filing of the suit the defendants started to demolish eastern wall of the house, which was dividing the plot of the plaintiff and defendant and started to sink a plinth. This was objected by the plaintiff. The defendant has encroached land of plaintiff 2/4 ft. wide and 106 ft. in length - total area 265 sq. ft. The aforesaid encroached area has been valued by the plaintiff in para 6 of the plaint @ Rs. 150/- per sq. ft. at Rs. 39,750/- and on this land plaintiff has prayed declaration and mandatory injunction. In para 8 of the suit the plaintiff has put the valuation for the purpose of court fees and jurisdiction at Rs. 39,750/- and for declaration and mandatory injunction at Rs. 500/- but fixed Court fees has been paid. The defendants objected to it that the plaintiff is required to pay ad-valorem Court fees, which has been allowed by the trial Court.

6. To proceed further it would be appropriate if relevant provisions of Court fees Act and Suits Valuation Act are referred. For ready reference section 7(iv)(c) Court Fees Act, 1870 and section 8 of the Suits Valuation Act, 1887 are referred, which reads as under:

7. Computation of fees payable in certain suits - The amount of fee p