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2004 DIGILAW 231 (HP)

SANJEEV AGGARWAL v. ROSHAN LAI SOOD

2004-09-21

A.K.GOEL

body2004
JUDGMENT Arun Kumar Goel, J. (Oral) - Admitted facts of this case are that the parties to the suit are co-owners of the property bearing Municipal No. 135, situate in Lower Bazar, Shimla, consisting of four storyes in addition to sub-basement and land underneath it, standing on an area of the land is 75 square yards out of khasra No. 413 (old), measuring 1415 square feet as per Khasra Paimayash, 1907, and its present khewat No. 1 min, khatauni No. 257, khasra No. 1046, measuring 68.38 square meters as per the revenue record, i.e. Misal Hakiyat Bandobast Zadid (Second Revised) 2002-2003 of Bazar Ward, Barra Shimla, Tehsil Shimla (Urban), Distt. Shimla. 2. At the time of hearing, it was not disputed that both plaintiffs have 2/5 undivided share each, in this entire property, whereas defendant has 1/5 undivided are in it. Plaintiffs claim themselves to be in possession of part of the property, whereas defendant claims to be in possession partly as owner and partly as tenant. 3. What is the effect of parties being in possession so far valuation of the suit under the provisions of H.P. Court Fees Act, 1968 is concerned, is the core question involved in this application. 4. Learned Senior Counsel appearing for the defendant, at the time of hearing on 10.9.2004, urged two pleas. That after the amendment of the plaint, plaintiffs have not correctly and legally valued the suit for purposes of Court Fee and jurisdiction. Further per him, valuation of the suit for purposes of Court fee and jurisdiction has to be the same. By referring to paragraph 14 of the plaint, Shri G.C. Gupta, pointed out that the valuation fixed for the purposes of jurisdiction is 63,75,000/- being the market value of the suit property, and of the share of each one of the plaintiffs it is Rs: 25,50,000/-. Therefore, value for purposes of Court fee is fixed at Rs. 51,00,000/- and Court fee is fixed at Rs. 19.50 has been affixed on the plaint. Reason for affixing the Court fee of Rs. 19.50 as per plaintiffs is that they are in possession of a part of suit property as detailed in paragraph 6 of the plaint. When a reference is made to paragraph 6 of the written statement, it is clear that possession of parties is admitted. Dispute is, regarding nature and character of possession of the parties. 19.50 as per plaintiffs is that they are in possession of a part of suit property as detailed in paragraph 6 of the plaint. When a reference is made to paragraph 6 of the written statement, it is clear that possession of parties is admitted. Dispute is, regarding nature and character of possession of the parties. Defendant1 admits himself to be in possession, but not to the extent of 62% as alleged by the plaintiffs. What is the extent of defendants possession in the suit property or any part thereof, he has chosen to remain silent. He was the best person to have stated the facts. 5. Shri G.C. Gupta, learned senior Counsel for the defendant urged that in this case for the purposes of Court fee, Section 7(iv)(b) of HP. Court Fees Act is attracted, therefore, the court fee to be affixed on the plaint is according to the amount at which relief sought is valued in the plaint. On this aspect he placed reliance on the decisions in Sadhu Mahadu Jagdale v. Tatya Sadhu Jagdale and others, AIR 1973 Bombay 91; Kanwar Partap Singh v. Minakshi Devi and others, 1989(1) Sim.L.C. 107; Co-operative Forest Societies Union of District Kangra, H.P. v. State of H.P.-and others, AIR 2003 HP. 137 and Dr. Om Parkash Rawal v. Mr. Justice Amrit Lal Bahri, 1994(1) SLJ 758 : 1994(1} Cur.L.J. (H.P.) 473. 6. After having examined these decisions to which a brief reference will be made hereafter, in my considered view, none of these are attracted to the facts and circumstances of the present case. 7. In Sadhu Mahadu Jagdale v. Tatya Sadhu Jagdale and others (supra), a suit for partition and separate possession of share/shares in joint family property was prayed, therefore, ad valorem Court fee was ordered to be fixed in this case. Admittedly, parties in this suit are not members of the joint family, as such there is no question of their being in possession of the joint family property. 8. In Kanwar Partap Singh v. Minakshi Devi and others (supra), it was held that shares of the parties had first to be determined and then declaration was to be given thereto. The grant of prohibitory injunction was held to be dependent upon the aforesaid declaration of the shares of the parties. 8. In Kanwar Partap Singh v. Minakshi Devi and others (supra), it was held that shares of the parties had first to be determined and then declaration was to be given thereto. The grant of prohibitory injunction was held to be dependent upon the aforesaid declaration of the shares of the parties. Therefore, in those circumstances, it was held that the declaration and consequential relief of injunction was to be decided in the suit as per provisions of Section 7(iv)(c) of the H.P. court Fees Act, 1968, this provision was held applicable. Again, that is not the situation in the present case because possession by the parties is admitted and their shares are not in dispute. 9. So far decision in Co-operative Forest Societies Union of District Kangra, H.P. v. State of H.P. and others (supra) is concerned, its ratio is also not applicable to the facts of the present suit, reason being that it was a suit for rendition of accounts. In the context of Section 8 of the Suits Valuation. Act, plaintiff had valued the suit for purposes of court fee at Rs. 2000/-, whereas for the purposes of jurisdiction it was valued at Rs. 50, 00,000/-. Thus, this Court had held that the suit cannot be said to have been properly valued for purposes presentation to the proper Court. 10. So far reliance on the decision of this Court in Dr. Om Parkash Rawal v. Mr. Justice Amrit Lal Bahri (Supra), is concerned, again it is misconceived. The law laid down in it is wholly inapplicable to the facts and circumstances of this case. As already observed parties are admittedly in possession of part of the suit property. There being no dispute regarding their shares, thus to say that the valuation of the suit has to be the same for purposes of Court Fee and jurisdiction, and ad valorem court fee would be payable is, therefore, not correct. For taking this view, reliance is being placed on a decision of this Court, in Hushan Kaushal and others v. Bal Raj and others, 2001(2) Shim.LC. 223. What was held in this judgment and is relevant for the purposes of present case is extracted herein below: "18. For taking this view, reliance is being placed on a decision of this Court, in Hushan Kaushal and others v. Bal Raj and others, 2001(2) Shim.LC. 223. What was held in this judgment and is relevant for the purposes of present case is extracted herein below: "18. Following the ratio laid down by the Full Bench of the Lahore High Court in Asa Ram and others v. Jagan Nath and others, AIR 1934 Lahore 563, it was held that in a suit for partition of joint property, where the plaintiffs alleges joint possession, the suit would fall under Article 17(vi) of Second Scheduled of Court Fees Act, 1870 and a fixed court fee is payable. Section 7(iv) (b) would not applying to such a suit, however, the plaintiff has been excluded from joint enjoyment or where he has never been in enjoyment or possession, actual or constructive, of the joint property and desires to separate his share from the other co-shares, he must sue for possession and partition and in such a case he must pay ad valorem court fee on his share under Section 7(iv)(b) of the Court Fees Act, 1870. 19. To the similar effect has been by the Full Bench of Bombay High Court in Shankar Maruti Girme v. Bhagwant Gunaji Girme and others, AIR 1947 Bombay 259, and by the Full Bench of Madras High Court in C.R. Ramaswami Ayyanger (Minor) v. G.S. Rangachariar and others, AIR 1940 Madras 113, and by the Delhi High Court in Smt. Prakash Wati v. Smt. Dayawanti and another, AIR 1991 Delhi 48. 20. The position, therefore, is that in a suit for enforce right to share a joint family property, that is, a suit to be restored to joint possession or enjoyment or separate possession and enjoyment by partition of a joint family property, when the plaintiff is not in possession of such property, whether actual or constructive, Court fee would be payable under Section 7(iv)(b), ad valorem on the value of the relief as fixed and in a suit for partition of joint property, whether owned by a joint family or otherwise. Where the plaintiff claims that he is in actual or constructive possession thereof fixed court fee would be payable under Article 17(vi) of the Second Schedule of the Court Fees Act, 1870, corresponding to Article 13(iv) of the Second Schedule of the HP. Where the plaintiff claims that he is in actual or constructive possession thereof fixed court fee would be payable under Article 17(vi) of the Second Schedule of the Court Fees Act, 1870, corresponding to Article 13(iv) of the Second Schedule of the HP. Court Fees Act, 1968." 11. After taking note of this decision in Geeta Devi v. Devinder Nath Bhardwaj and others, 2003(1) Shim.L.C. 309, wherein the plaintiff was not in possession of the suit property, therefore, he cannot claim partition for separate possession without paying the Court tee, it was held as under:- "2. The brief facts relevant for the purpose of disposal of the aforesaid issue may be noticed. The plaintiff instituted a suit for partition of the suit property comprising Khasra Nos. 2472, 2473 and 2474, Khata No. 51 min, Khatauni No. 208 min, measuring -490.62 sq. meters, situated at Up Mohal Shiv Nagar, Hamirpur and for declaration of the share of the plaintiff in the Kisan Vikas Patra and National Saving Certificate arid for mandatory injunction to hand over the share of the plaintiff therein alongwith a decree for rendition of accounts. The suit properties were earlier admittedly owned by the father of the plaintiff and predecessor-in-interest of the defendants. The plaintiff claims that since he has 1/6th share in the immovable property left by his deceased father which is presently in possession of defendants No. 1 and 2 and the plaintiff does not want to remain joint owner of the suit property and thus wants partition thereof and separate possession to the extent of 1/6th share in the house, courtyard and the kitchen. Hence, the suit, which, has been valued for the purpose of jurisdiction at Rs. 31 lacs i.e. the entire value of the property in suit and for the purpose of Cow fee at Rs. 5,20,000/- i.e. the value of the share of the plaintiff in the suit property and the Court fee has been accordingly affixed. 3. The defendants contested the claim of the plaintiff inter alia on the ground that the suit was not properly valued for the purpose of Court fee and jurisdiction which led to the framing of aforesaid issue which was dealt with as a preliminary issue. 5. As per the plaint, case of the plaintiff is that the property in suit is in possession of defendants No. 1 and 2. 5. As per the plaint, case of the plaintiff is that the property in suit is in possession of defendants No. 1 and 2. In preliminary objection No. 7 in the written statement it has been pleaded by the defendants also that the plaintiff is not in possession of the property in the suit, therefore, he cannot claim partition for separate possession without paying the Court fee. Thus what clearly emerges from the pleadings is that the plaintiff is not in possession and enjoyment of the suit property, therefore, has instituted the suit for partition and possession of his share in the immovable property. It is, therefore, required to be determined as to in the given situation how the suit ought to have been valued for the purposes of Court Fee and jurisdiction. 6. A partition suit may be based on one of the two eventualities i.e. (i) wherein the plaintiff claims to be in joint possession of the property or (ii) where he is not in enjoyment and possession of the joint property sought to be partitioned and desires to separate his share in such property from the other co-sharers. In the former case the suit would fall under Article 13(vi) of Second Schedule of the HP. Court Fees Act (hereinafter referred to as the Act1) and a fixed Court fee will be payable. However, in the latter case the suit will be governed by Section 7(iv)(b)of the Act." 12. Decision in Hushan Kaushal and others v. Bal Raj and others (supra) was also noted in this case and then it was further held :- "16. It is contended by the learned Counsel for the plaintiff that even if this court comes to the conclusion that the value of the suit for the purpose of Court fee is Rs. 5,20,000/- that does not mean that this Court has no jurisdiction to try the suit as at the time of institution of the suit, a suit valued at more than Rs. 5 lacs was triable by this Court alone and that the jurisdiction of the District Judge to try suits up to the value of Rs. 10 lacs had been enhanced subsequent to the institution of the present suit. 5 lacs was triable by this Court alone and that the jurisdiction of the District Judge to try suits up to the value of Rs. 10 lacs had been enhanced subsequent to the institution of the present suit. On the other hand, the learned Counsel for the defendants has contended that once it is held that the value of the suit for the purpose of jurisdiction is such that it is triable by a lower Court the suit deserves to be transferred to such Court for disposal. 17 There is no dispute that prior to the coming into force of the Himachal Pradesh Courts (Amendment) Act, 2001 (hereinafter referred to as the Amending Act), the State were invested with the aforesaid pecuniary jurisdiction. Thus, even according to the value of the suit for the purpose of jurisdiction, as determined hereinabove, at the time of institution it was triable only by this Court. However, by the aforesaid Amending Act the pecuniary jurisdiction of the District Judge was enhanced to try the suits upto the value of Rs. 10 lacs. Thus, by virtue of the amended provisions a suit valued at Rs. 10 lacs or less became triable by the concerned District Judge. In the ordinary course and by virtue of provisions of Section 15 of the Code of Civil Procedure, it would have been in the discretion of this Court to continue with the trial of this suit, however, Section 21 (a) of the Himachal Pradesh Courts Act has been added to the Act to meet the situation when any change is brought about in the pecuniary jurisdiction of the subordinate Courts in this State which provides for the transfer of the suit, appeal or any other proceeding pending in the High Court at the time of such amendment to such subordinate Civil Court in Himachal Pradesh which would have jurisdiction to try such suit, appeal or proceeding. In view of the intendment of these provisions, the present suit deserves to be transferred for disposal to the concerned District Judge." 13. Keeping in view the facts as briefly noted hereinabove regarding each one of the parties being admittedly in possession of a part of the suit property, and it being not joint family property, I am satisfied that Section 7(v)(b) as well as 7(iv)(c) of the HP. Court Fees Act, 1968 is inapplicable to the facts and circumstances of this case. Keeping in view the facts as briefly noted hereinabove regarding each one of the parties being admittedly in possession of a part of the suit property, and it being not joint family property, I am satisfied that Section 7(v)(b) as well as 7(iv)(c) of the HP. Court Fees Act, 1968 is inapplicable to the facts and circumstances of this case. What follows from this is that the suit is properly valued for the purposes of court fee and jurisdiction. This view is supported by the two decisions of this court, referred to in the preceding paras of this order. 14. Another point on behalf of the defendant urged was, regarding determination of status of the defendant over the suit premises. With a view to call for findings on this issue, learned senior Counsel referred to the provisions of Order XX Rule 18 CPC. By referring to the provisions of Section 111 (d) of the Transfer of Property Act, he urged that there is no question of merger so far ownership and tenancy of his client in the demised premises is concerned. I am of the view that this question is not to be determined at this stage, and is thus left open. Ordered accordingly. 15. No other point is urged. 16. In view of the aforesaid discussion, OMP No. 349 of 2003 stands dismissed, by holding that the suit is properly valued for purposes of Court fee and jurisdiction. 17. Keeping in view the fact that there is no dispute regarding shares of the parties in the suit property for partition by metes and bounds whereof present suit has been filed by the plaintiffs against the defendant, and shares of the parties being admittedly 2/5 and 2/5 each of plaintiffs and 1/5 of the defendant, a preliminary decree is passed holding so. A Local Commissioner needs to be appointed for working out the modalities of partition by metes and bounds as well as keeping in view the provisions of Partition Act. Parties are directed to suggest a mutually acceptable person to be appointed as Local Commissioner for suggesting the mode of partition of the suit property. For this purpose, the case is ordered to be listed on 15.10.2004. OMP 350 of 2003 18. Parties are directed to suggest a mutually acceptable person to be appointed as Local Commissioner for suggesting the mode of partition of the suit property. For this purpose, the case is ordered to be listed on 15.10.2004. OMP 350 of 2003 18. Though this application has been contested and resisted by the plaintiffs, as according to their learned Counsel, his clients are in physical possession of a part of the suit property as owners, whereas defendant has claimed tenancy besides being co-owner over a part of the property that is, in his possession. Keeping in view the over all facts and circumstances of the case, this application is disposed of with the direction that in case plaintiffs wants to part with or transfer in any manner any part of the suit property over which they claim to be in possession, they will keep him, the transferee, informed in writing in the transfer or other deed that such transfer shall be subject to outcome of Civil Suit No. 41 of 2003 which is pending in this Court, and the intending purchaser will not be entitled to claim any equities much-less any right as a bonafide purchaser for consideration without notice of this litigation and it will not in any manner effect the claim of the defendant to get the equities adjusted against such transferee(s) also. In this behalf, it also hardly needs to be clarified that such transfer will also be governed by the doctrine of lis - pendency, as well as subject to the directions contained in this order. This application also stands disposed of accordingly. Dasti Copy.