Rachhya Raut and Others vs Musammat Chando and Others

It appears to us that in this case the decision of the Taxing Officer was right. The plaintiffs brought a suit for partition of 13 bighas 16 cottas 1 dhur of land. Before the suit was brought, it appeared that some of the land had been entered in the Record of Rights as in the possession of the defendants and in these circumstances a cloud was cast upon the title of the plaintiffs, and in the forefront of their prayer in the plaint they claimed a declaration that the land in suit with the trees standing thereon is the ancestral property of the plaintiffs and the defendant, and that both the parties, according to their respective shares, are in joint possession and have been appropriating the produce thereof, and, secondly, they claimed that as a result of the adjudication on the above point a decree for partition may be passed by the Court. We quite agree. As appears from the cases of Mohendro Chandra Ganguli v. Ashutosh Ganguli 20 C. 762 : 10 Ind. Dec. 514 and Bidhata Rai v. Ram Chariter Rai 12 C.W.N. 37. 6 C.L.J. 651 : 3 M.L.T. 33, one must look to see what is the real nature of the claim. If it is merely a suit claiming a partition and nothing else, then it makes no difference that the defendants by their written statement raise a question disputing the title or possession of the plaintiffs. But if, as here, in the very forefront of their claim they ask the Court for a declaration of their title and possession, then it stems to us that they are claiming under the guise of a partition suit a declaration of their title, which is the proper subject-matter of a title suit, and, therefore, as the Taxing Officer has determined, the fee payable in the Court of first instance was deficient to the extent of Rs. 17-40. Before this appeal can proceed, we must declare that the deficit Court-fee upon the plaint, viz., Rs. 17-4-0, must first be paid. The learned Vakil for the appellants has undertaken to pay the Court-fee by the end of this week.

Let the Court-fee be accepted if paid by Saturday next.