S. Barman, J.
1. In this Miscellaneous appeal, the plaintiff is the appellant from a judgment of the learned Additional District Judge, Ganjam Nava-garh, Berhampur in Title Appeal No. 21 of 1955 against the decree passed by the learned Munsiff of Berhampur in Title Suit No. 77 of 1950.
2. This matter, -- relating to jurisdiction and court-fee, -- arose out of the plaintiff's suit for specific performance of contract for sale of land. Upon the vendor's failing to carry out his part of the contract, the plaintiff filed the suit against the vendor and in the suit she added the subsequent purchasers being defendants Nos. 3 and 4. The vendor is defendant No. 1 and defendant No. 2, as his Dewan, was also added as a party. The learned Munsit decreed the suit and in appeal from his decision the learned lower appellate court made an order of remand in terms as stated in his judgment.
The order of the learned lower appellate court was that the judgment and decree of the learned. Munsif was set aside; the suit was directed to go back to the trial Court with a direction to return the plaint to the plaintiff for presentation in proper court; in case the plaintiff wanted to retain the plaint in the trial Court after amending the plaint, if it so can be, to keep it in that court and the learned trial court would give a chance to the parties to produce the document referred to in the judgment and other evidence if the parties so desire and dispose of the suit afresh.
3. In the prayer of the plaint there was a prayer for declaration of the sale by the first defendant in favour of the fourth defendant on 20-4-1950 as invalid and not binding on the plaintiff. A point was taken at the trial that in view of this prayer having been incorporated in the prayers in the suit it brought the suit within Section 7(iv)(c) of the Indian Court-fees Act which provides that in suit to obtain a declaratory decree or order, where consequential relief is prayed, the valuation would be on the basis of market value. It is, however, contended on behalf of the plaintiff that this case comes under Section 7(x) of the Act which is a specific section for suits for specific performance, providing that in suits for specific performance of a contract of sale the valuation would be according to the amount of the consideration. In the present case the consideration for the suit contract of sale was Rs. 3000/- whereas the consideration for the subsequent purchase by defendants Nos. 3 and 4 was Rs. 5000/-.
3a. The only question for consideration in this appeal is whether the suit would be valued at Rs. 5000/-, being the consideration of the subsequent purchase or at Rs. 3000/- being the consideration of the suit contract for sale. Mr. R.N. Misra, learned counsel appearing for the plaintiff-appellant, contended that this directly comes under Section 7(x) of the Court-fees Act. His point was that the prayer for declaration that the sale by the first defendant in favour of defendant No. 4 was not valid and binding was only incidental to his main prayer for relief for specific performance as claimed in the suit. In support of his contention the learned counsel relied upon a decision of the Patna High Court in the case of Kashi Prasad v. Baiju Paswan, AIR 1953 Pat 24 where the facts shortly stated were these:
The plaintiff's case was that the defendant first party entered into an agreement in writing and contracted to sell the land in dispute by a certain date for a consideration of Rs. 1700/-; but he did not perform the contract and sold the land to defendant second party and put him into possession thereof. The suit was for specific performance of contract of sale of the land and for possession thereof with mesne profits from the date of the institution of the suit. The suit was valued at Rs. 1700/-, that is to say, the amount of the consideration money, and the court-fee was paid thereon under Section 7(x)(a). On these facts, the Patna High Court, in revision, expressed opinion that the suit was essentially one for specific performance of contract; the right to possession sprang out of the contract of sale and that the Court was asked to give relief by giving possession; such a relief was comprised in the relief for specific performance of contract of sale; the addition of the prayer for possession, made no difference.
In the judgment it was also notieed that under Section 27 of the Specific Relief Act, specific performance of contract may be enforced against (a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract. In that case the Patna High Court had to consider the implication of the prayer for possession. In a decree for specific performance to be enforced, delivery of possession is undoubtedly incidental to enforce such a decree. In such a case the Court must order possession to be delivered to the plaintiff either by the defendant first party or by the defendant second party or by both. In this view of the matter the Patna High Court held that addition of a prayer for possession did not change the character of the suit even if a third party was in possession, if such a person did not claim possesion under a paramount title.
The cause of action for delivery of possession is not different from the cause of action for the specific performance of the contract itself. In the said judgment it was also observed that a prayer for injunction in a suit for specific performance would not change the character of the suit. In the present case, the declaration that the subsequent sale would not be binding is only incidental to a decree for specific performance that might ultimately be passed in the suit.
4. Mr. Asok Das, learned counsel for the defendants-respondents, while trying to refute the contentions raised on behalf of the plaintiff-appellant, drew my attention to Section 8 of the Orissa Court-tees Amendment Act, 1939 (Orissa Act No. V of 1939). There appears an insertion of a new paragraph (iv-A) in Section 7 of the principal Central Court-fees Act (Aet VII of 1870), namely,
'iv-A. In a suit for cancellation of a decree for money or other property having a money value, or other property having such value, according to the value, of the subject matter of the suit, and such value shall be deemed to be'
such as fully provided in the said section. The learned counsel argued that the prayer for declaration as prayed for in the present case really amounted to cancellation of the subsequent contract of sale with defendants Nos. 3 and 4 and therefore this case should be governed by the provisions of Orissa Court-fees (Amendment) Act, 1939 quoted above, It, however, appears that Section 8 of the Orissa Act in terms does not apply to the present case.
It is clear that this section refers to cancellation of a decree for money or other property having a money value or other document securing money or other property having such value. In the present case, however, the declaration prayed for is not the main prayer of the plaintiff. In the suit, the plaintiff asks for specific performance and the declaration of the subsequent sale as invalid is only incidential to such specific performance of the first contract of sale. In this view of the matter as aforesaid, I cannot pursuade myself to accept Mr. Asok Das's contention that tor the purpose of valuation this case should come within Section 8 of the Orissa Act V ot 1939. I, therefore, accept the view that this case comes directly under Section 7(x) of the Indian Court-fees Act VII of 1870 applicable to suits for specific performance.
5. It appears that the learned Additional District Judge made the order ot remand on the further ground to give the parties a chance to produce the petition of one Sri L.K. Adhikari dated 30-3-1950 referred to in his judgment or adduce such other evidence as the parties desire. So far these directions are concerned they are not challanged by either party.
6. In this view, of the matter, I modify the order of the learned Additional District Judge to the extent that his direction to return the plaint stands set aside; so far as the other directions in his order of remand are concerned, they will stand. This appeal is disposed of accordingly. As regards costs of this appeal, they will abide the result ot the suit.