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2008 DIGILAW 603 (PAT)

Mithilesh Thakur v. Radha Devi

2008-04-15

S.N.HUSSAIN

body2008
Judgment 1. This civil revision has been filed on behalf of the plaintiffs-petitioners challenging order dated 19.10.2006 by which the learned Munsif-l, Darbhanga, fixed the valuation of the suit property described in Schedule-ll of the plaint at Rs. 40,000.00 in Partition Suit No. 89 of 1992. 2. The aforesaid suit was filed by the plaintiffs for partition of 8.93 dhurkies land described in Schedule-ll of the plaint from 1 katha, 12.88 dhurkies of land described in Schedule-I of the plaint. The plaintiffs claim was based upon their purchase of Schedule-II land. The defendant 1st Party appeared in the suit and filed her written statement, in paragraph 31 of which specific averment was made and undertaking was given to buy the share of the transferee plaintiffs. 3. After hearing the said suit was decreed and the claim of defendant 1st Party was rejected by the learned Munsif I, Darbhanga vide judgment and decree dated 28.2.1997. Against the said judgment and decree, defendant 1st Party (O.P. No. 1) filed Title Appeal No. 09 of 1997 and after hearing the parties, the learned Additional District Judge, Darbhanga, by his judgment dated 19.9.1998 allowed the said Title Appeal holding that defendant 1st Party was entitled to purchase the share of plaintiffs on the valuation to be fixed by the learned court below at prevailing rate in the manner prescribed under Section 4 of the Partition Act. The case was sent back to the learned court below for evaluation of the share of plaintiffs at the prevailing rate and directed defendant 1st Party to deposit the said amount within the prescribed time and after deposit of the amount directed the plaintiffs to execute the sale deed in favour of defendant 1st Party within the prescribed time failing which the same be done through the process of the court. Against the said judgment and decree of the lower appellate court the plaintiffs filed Second Appeal No. 29 of 1999 and this court vide its order dated 22.3.2002 dismissed the said Second Appeal and affirmed the judgment and decree of the lower appellate court. The said order was challenged by the plaintiffs in LPA No. 598 of 2002 which was also dismissed by this court on 16.5.2002. Hence the order passed in Title Appeal No. 09 of 1997 stood affirmed. 4. The said order was challenged by the plaintiffs in LPA No. 598 of 2002 which was also dismissed by this court on 16.5.2002. Hence the order passed in Title Appeal No. 09 of 1997 stood affirmed. 4. It transpired that thereafter the matter with regard to determination of the valuation of the property detailed in Schedule-II of the plaint was taken up by the learned trial court as per the directions given in the abovementioned judgment and decree of the lower appellate court and by order dated 22.2.2005, the learned Additional Munsif, 4th, Darbhanga, directed the parties to adduce evidence for determination of prevailing rate of Schedule-ll property of the plaint of Title Suit No. 89 of 1992. The said order was challenged by defendant 1st Party in this court vide C.R. No. 500 of 2005. However, after considering of the entire facts and circumstances of the case, this court by order dated 18.1.2006 allowed the civil revision, set aside the imugned order of the learned court below dated 22.2.2005 and held that the crucial date is the date on which defendant 1st Party exercised her option under Section 4 of the Partition Act and hence the relevant date for fixation of the value of the property in Schedule-II of the plaint is 12.2.1993 on which date the petitioner exercised her option under Section 4 of the Partition Act and filed written statement in paragraph 31 of which undertaking in that regard was given. The learned court below was directed to determine the value of the suit property as on the aforesaid date, i.e. 12.2.1993. The said order of this court was challenged by the plaintiffs before the Hon ble Apex Court vide Special Leave to Appeal (Civil) No. 8186 of 2006 which was dismissed on 11.5.2006. Thus, the order of this court dated 18.1.2006 also stood affirmed. 5. In the aforesaid facts and circumstances, there remains no doubt that two issues attained finality up to the Hon ble Apex Court, namely that defendant no. Thus, the order of this court dated 18.1.2006 also stood affirmed. 5. In the aforesaid facts and circumstances, there remains no doubt that two issues attained finality up to the Hon ble Apex Court, namely that defendant no. 1 was entitled to buy the share of the plaintiffs on the valuation to be fixed by the learned trial court at the prevailing rate in the manner prescribed under Section 4 of the Partition Act and that the prevailing rate relevant for fixation of the value of the property of Schedule-ll of the plaint was the prevailing rate as on 12.2.1993, the date on which defendant no. 1 filed her written statement exercising her option under Section 4 of the Partition Act. In the light of the aforesaid matter, the learned trial court started the inquiry and the parties were directed to adduce their evidence with respect to the valuation of the Schedule-ll land as on 12.2.1993. 6. The plaintiffs adduced 10 witnesses, whereas 4 witnesses were adduced on behalf of defendant 1st Party. The plaintiffs also produced 4 exhibits, out of which Ext. 1 was letter no. 2949 dated 12.11.2003 issued by the District Sub-Registrar, Darbhanga, in which it was mentioned that Collector vide Memo No. 1559 dated 8.11.1992 fixed the minimum rate of the land of Mouza Belwaganj at the rate mentioned therein, Ext. 1/A was letter No. 340 dated 17.3.2005 issued by the District Sub-Registrar, Registry Office, Darbhanga, stating about the rate of different categories of land in the year 1992-93, Ext. 2 was the cerified copy of the sale deed dated 22.7.1993 in which Rs. 6,000.00 was the consideration amount of 1 dhur 60 dhurkies of the land sold and Ext. 2/a was another sale deed dated 26.9.1998 in which 5 dhur alongwith house in the same area was shown to have been sold for Rs. 85,000.00. On the other hand, two documents were produced on behalf of the defendants, out of which Ext. A was the plaint of Partition Suit No. 89 of 1992 and Ext. B was the sale deed dated 8.11.1990. 7. After considering the matter in detail and appreciating the claims of the respective parties and the evidence adduced by them, the learned court below by the impugned order dated 19.10.2006 held that the valuation of the suit property described in Schedule-II of the plaint was Rs. B was the sale deed dated 8.11.1990. 7. After considering the matter in detail and appreciating the claims of the respective parties and the evidence adduced by them, the learned court below by the impugned order dated 19.10.2006 held that the valuation of the suit property described in Schedule-II of the plaint was Rs. 40,000.00 as on 12.2.1993 and defendant no. 1 was directed to deposit the said sum within three months from the date of the said order and the plaintiff was directed to execute the sale deed with respect to Schedule-II property of the plaint in favour of defendant no. 1 on receipt of the consideration money deposited in the court failing which the sale deed will be executed with respect to Schedule-II property of the plaint in favour of defendant no. 1 through the process cf the court. 8. The aforesaid order is under challenge in the instant civil revision. The claim of the plaintiffs-petitioners is that the contention of defendant 1 st Party that Schedule-ll property was a dwelling house is fraudulent and she had concealed that it was a commercial property ana hence the defendant never wanted to live therein. It is also claimed by the plaintiffs-petitioners that the purpose of defendant no. 1 was only profiteering as she had already made an agreement for sale with some intended purchasers and hence the intention of defendant no. 1 was clearly against the spirit of Section 4 of the Act. The plaintiffs-petitioners also claimed that the valuation fixed by the learned court below was very low as the letter of the Collector dated 17.3.2005 (Annexure-1) clearly showed that the value of the commercial land as on 21.11.1992 was Rs. 1,75,000.00 per katha. 9. From the facts and circumstances of the case, it is quite apparent that the learned lower appellate court by its judgment and decree dated 19.9.1998 passed in Title Appeal No. 09 of 1997 had clearly allowed the claim of defendant no. 1 under the provision of Section 4 of the Partition Act. The said Section 4 of the Partition Act specifically deals with respect to a dwelling house and hence it is quite apparent that the lower appellate court has held that Schedule-II property of the plaint was a dwelling house. 1 under the provision of Section 4 of the Partition Act. The said Section 4 of the Partition Act specifically deals with respect to a dwelling house and hence it is quite apparent that the lower appellate court has held that Schedule-II property of the plaint was a dwelling house. The said judgment and decree of the lower appellate court was affirmed by this court as well as by the Hon ble Apex Court. In the said circumstances, the question now sought to be raised by the plaintiffs-petitioners that the said property was not a dwelling house, rather it was commercial in nature is not entertainable and the learned court below has rightly rejected the said claim. 10. Furthermore, the valuation fixed by the learned court below is clearly in accordance with the valuation given in the said Annexure-1 (Ext.1/A) for residential premises, which was also fully supported by other documentary and oral evidence produced on behalf of the plaintiffs and which could not be disproved by any evidence adduced on behalf of the defendants. It may also be noted that the plaintiffs had filed Partition Suit No. 89 of 1992 on 28.9.1992 giving valuation of the suit property as Rs. 20,000.00, whereas defendant no. 1 filed her written statement on 12.2.1993 in which undertaking was given to buy the share of the transferee plaintiffs and hence in the said circumstances, it does not lie in the mouth of the plaintiffs to now claim that within a period of six months the value of the property enhanced from Rs. 20,000.00 to any amount beyond Rs. 40,000.00 i.e. more than double. 11. In the aforesaid facts and circumstances, this court does not find any illegality or jurisdictional error in the impugned order of the learned court below and accordingly, this civil revision is dismissed.