Ugramohan Chowdhri vs Lachmi Prasad Chowdhri and others

This is a Court-fee matter. The question involved is of considerable importance and in our view should be decided by a large Bench. The point is this: Whether a suit for declaration of title as adopted son and for possession is a suit that comes within S. 7, cl. (4), sub-cl. (c) of the Court Fees Act, or within S. 7, cl. (5) of that Act. The learned Registrar has taken the view that it comes under S. 7, cl. (4), sub-cl. (c) of the Court Fees Act. Mr. Sushil Madhub Mullick on behalf of the Appellant has argued that this view is erroneous inasmuch as every suit for possession must necessarily involve adjudication of the title of the Plaintiff. He says that in every suit for possession the Plaintiff must prove his title, and that consequently he must necessarily ask for declaration of his title. In my view the question depends on whether the suit is a suit that comes within S. 42 of the Specific Relief Act. If it is a suit that comes within S. 42 of the Specific Relief Act then it must come under S. 7, cl. (4), sub-cl. (c) of the Court Fees Act.

It is true that every suit for possession does involve a question of title in the sense that the Plaintiff in an ejectment suit might prove his title. But that is not the case here. Where, however, a challenge is directly thrown on the title of the Plaintiff, and the Plaintiff comes to Court in order to meet that challenge, it is a suit clearly under S. 42 of the Specific Relief Act, and it would accordingly in my view come under S. 7 cl. (4), sub-cl. (c) of the Court Fees Act. In this case it appears to me that there was undoubtedly a challenge thrown on the Plaintiff''s title. He came to Court to meet that challenge. He asked for a declaration that he was the adopted son of somebody, and for consequential relief, that is, for possession. It is not the same thing as an ordinary suit for possession where the question of title incidentally arises. In my view the learned Registrar has taken an entirely correct view of the matter, but as the question is always coming before us in one garb or another, we think that it ought to be finally settled by a larger Bench. Place the record before the learned Chief Justice for necessary orders.

[The Record was placed before C.J. who passed the following order:]

Dawson-Miller, C.J.

In my opinion this decision is correct. There is no other decision in conflict with the above and I do not think it is necessary to refer it to a Full Bench.