Mussammat Barkatunnisa Begum v. Mussammat Kaniza Fatma

Kulwant Sahay, J.:— (after stating the facts of the case, proceeded as follows):

The whole question is whether the suit as framed asks for a declaratory decree and for consequential relief. In my opinion the suit as framed is a suit for ejectment. The prayer for determination of the plaintiff's title was only incidentally made in the plaint. It is not denied on behalf of the defendants that at the time they entered the house the plaintiff was the owner of the house. They set up a subsequent gift from the plaintiff. The plaintiff denies that she made any gift to the defendants. If the defendants can succeed in proving the oral gift, the suit will certainly be dismissed: but the valuation of the suit is to be determined not upon the plea taken in the written statement but upon the allegations as made in the plaint. The plaint merely asks for a decree for ejectment of the defendants. The case comes, in my opinion, under section 7, clause (v), of the Court-fees Act and the court-fee payable is according to the market-value of the subject-matter of the suit. The subject-matter of the suit is the right to eject the defendants and the value of that right is the value at which the defendants' right to remain in the house under the license of the plaintiff may be valued [See Ramraj Tewari v. Girnandan Bhagat]. The plaintiff has valued it at Rs. 400. The Court does not say that this valuation is an unreasonable one. The plaintiff, however, has put in a petition for leave to amend the plaint in order to make her position clear. In my opinion she ought to be given an opportunity to amend the plaint.

The order of the Munsif returning the plaint will therefore be set aside and the case remanded to him for consideration of the application for amendment of the plaint and for disposal of the suit according to law.

Ross, J.:— I agree.

Case remanded.