Louis P. Russell, Acting C.J.
1. Before discussing the somewhat difficult question of law herein it is necessary to give an outline of the material facts.
2. This is an appeal from the order of the First Class Subordinate Judge of Thana, whereby he directed the plaint to be returned to the plaintiff for presentation to the proper Court inasmuch as the lands in question were not of the value of Rs. 5,000 and therefore his Court at Thana had no jurisdiction to try the suit.
3. The plaintiff Dayaram Jagjivan sued the three defendants (1) Goverdhandas Dayaram, (2) Damodar Vithoba and (3) Chin' taman Bhagwan for the relief hereinafter set forth. Defendant. I had got a decree No. 17,520 of 1900 in the Bombay Small Causes Court against the Bombay firm of Moti Jagjiwan and Co. for a certain sum. In execution of that decree which was transferred to the Second Class Subordinate Judge's Court at Dahanu the said defendant caused the lands in question to be attached. They are situate at Kanadu near Kalgaon in the Taluka of Umbergaon within the jurisdiction of the said Second Class Subordinate Judge's Court.
4. The plaint was stamped with a court-fee of Rs. 10 and the value of the claim stated therein is Rs. 130. Para 9 of the plaint says that the plaintiff's claim is to be restored to possession and that as the value of the land is more than Rs. 5,000 the suit is brought in the said Court at Thana.
5. The reliefs sought by the plaintiff are thus summarized in the judgment of the lower appellate Court.
(a). That it be declared that the plaint property as per list to plaint is Sadavart property on the foot of the Vydvastha-patra dated 13th July 1896.
(b). That the plaintiff has become its owner from the date of its purchase for the Sadavart purpose (sic).
(c). That defendant 3 should be declared not entitled to possession.
6. No copy or translation of the plaint, however, has been furnished to us, and (as I have had to do on many previous occasions) I protest against this Court being asked to decide on questions when proper materials are not placed before us.
7. Issues 1 and 2 were the only ones decided.
(1). Whether the plaint is not properly valued.
(2). Whether this Court has jurisdiction to try this suit ?
8. It was assumed in the argument before us that consequential relief was not claimed. Mr. Shingne for the defendants expressly stated that he would assume that. In our opinion however that assumption is wrong. See the following cases: Bam Prasad v. Sukh Dai ILR (1880) All. 720 (read the head-note) and Ahmed Mirsa Saheb v. Thomas ILR (1886) 13 Cal 162 where Jalaluddeen v. Shohorullah (1874) 15 B.L.R. App. 1 was followed (read the head-note). In the former of these cases the plaintiff asked that the property 'might be protected from sale,' in the latter a declaration was sought that the property belonged to the plaintiff. In this case para 9 of the plaint and prayer (a) of the plaint are undistinguishable from those cases. The cases above quoted show that an ad valorem duty as prescribed by Schedule I of the Court Pees Act of 1870 was payable on the plaint. See a'so Parvatibai v. Vishvanath I L R (1880) 4 Bom. 515.
9. It has no doubt been held that the valuation of suits for the purpose of jurisdiction is perfectly distinct from their valuation for the fiscal purpose of court-fees and therefore Court Pees Acts, which are fiscal enactments, are not to be resorted to for construing enactments which fix the valuation of suits for the purpose of determining jurisdiction: Dayaehand Nemchand v. Hemchand Dharamchand I L R(1904) 29 Bom 207. Still Section 8 of the Suits Valuation Act, VII of 1887, provides that where in suits other than those referred to in the Court Pees Act, 1870, Section 7, paras v, VI and IX, and para X, Clause (d) i.e. suits for possession of lands and houses, for pre-emption, to redeem and foreclose a mortgage, and for specific performance of an award) court-fees are payable ad valorem under the Court-fees Act, 1870, the value as determinable for the computation of court-fees and the value for the purposes of jurisdiction shall be the same. A suit for a declaration with consequential relief falls under para iv (c) of Section 7 of the Court-Fees Act and so it is a suit 'other than ' those referred to in paras V, VI, IX and X (d) of that section. Again the words in Section 8 of the Suits Valuation Act ' as determinable' are important: 'determinable' by whom Surely by the Court who has to try the case. For, whether, or not a suit has been properly valued is a preliminary question which ought to be disposed of before the case goes to trial: Joytara Dassee v. Mahomed Mobaruck I L R(1882) Cal. 975 see also Bai Meherbai v. Maganchand I L R(1904) 29 Bom. 229.
10. Further, Section 11 of the Suits Valuation Act expressly authorises an appellate Court to entertain objections to the over or under valuation of suits for the purpose of jurisdiction under the conditions therein laid down : a provision which would have been useless if the Court of first instance had not had the power to decide the question.
11. As regards the cases cited in argument before us, Boidya Nath v. Makhanlal I L R(1890) 17 Cal. 680 the following passage is applicable to this case. ' The Court Fees Act (Section 7; Clause 4) provides that for the purpose of determining the amount of court-fee payable, the value of certain classes of suits should be taken to be the amount at which the plaintiff values the relief sought. But we do not think the Legislature ever intended, to leave it to the plaintiff to choose the Court in which he should bring his suit for possession or partition of property by assigning an arbitrary value to the subject matter of the suit. The provisions of the Suits Valuation Act (Act VII of 1887, Section 7, 8 and 11) clearly indicate that that is not the intention of the Legislature. The present case does not come within any of the classes of cases in which, according to that Act, the court-fee valuation and valuation for the purposes of jurisdiction are declared to be identical. In the absence of any rules made under the last-mentioned Act, we think the correct rule to follow is that indicated in the observation of Garth, C.J., in Kirty Ghurn Mitter v. Aunath Naih Deb I L R(1882) Cal. 75 that for purpose of jurisdiction in partition suits we should be guided by the value of the property in suit.'
12. The plaintiff has not assailed the conclusion of fact come to by the learned First Class Subordinate Judge at Thana and apparently his sole reason for raising the point as here is suggested inconvenience in having the case tried in the Dahanu Court in getting the attendance of witnesses and the production of books et cetera there.
13. We therefore confirm the order of the lower appellate Court and dismiss this appeal with costs.
Aston, J.
14. The decision in Dhondo v. Govind I L R (1884) 9 Bom. 20 shows that this suit must be treated as one falling under Schedule II, Article 17, Clause 1 of the Courts-Fees Act, VII of 1870.
15. Section 3 of the Suits Valuation Act VII of 1887 provides that 'the Local Government may with the previous sanction of the Governor-General in Council make rules for determining, the value of land for purpose of jurisdiction in the suits mentioned in the Court-fees Act, 1870, Section 7, paragraphs V and VI and paragraph x Clause (d).
(2). The rules may determine the value of any class of land or of any interest in land, in the whole or any part of a local area, and may prescribe different values for different places within the same local area.
16. At the hearing both sides were agreed that the Local Government have not made the rules contemplated in Section 3.
17. For the appellant-plaintiff it was contended by Mr. Pilgamkar that it was therefore open to plaintiff to adopt any value he pleases for the purpose of jurisdiction and Eshoor Boss v. Venkata Subba rau I L R (1908) Mad. 480 was relied on in support of this contention. Mr. Shingne for respondent relied upon Boidya Nath v. Makhan Lal I L R (l890) Cal. 680 as showing that the Calcutta High Court have expressed a contrary opinion.
18. In Lakshman v. Babaji I L R (1883) 8 Bom. 31 decided in 1883, i.e., before the Suits Valuation Act, VII of 1887, it was broadly laid down that: 'what primd facie determines the jurisdiction is the claim' or subject-matter of the claim as estimated by the plaintiff.' But in that case West J. also said, 'an exaggerated claim thus brought for the purpose of getting trial in a different Court from the one intended by the legislature is substantially a fraud upon the law and must be rejected, whether it arises from mere recklessness or from an artful design to get the adjudication of one Judge instead of that of another.'
19. There is no express provision in the Suits Valuation Act making the valuation for the purposes of jurisdiction primd facie determinable by the plaintiff in any suit which can be valued lower for the computation of court fees.
20. On the other hand Section 4 of the Suits Valuation Act seems to me to indicate that the principle adopted by the legislature for valuing a suit mentioned in Schedule II, Article 17 which relates to land or an interest in land is that the value of such a suit for purposes of jurisdiction shall be governed by the value of the land or interest in land.
21. It being nowhere enacted in the Act that where such value is not determined by rules made under Section 3, the value shall be such as the plaintiff chooses to adopt, I am of opinion that the value must be (where disputed) determined by judicial decision in the suit, such determination being subject to the provisions of Section 11 of the Suits Valuation Act, VII of 1878.
22. I would therefore confirm the order of the lower appellate Court and dismiss this appeal with costs.