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2008 DIGILAW 650 (CAL)

Kartick Mondal v. Biman Sen

2008-07-04

JYOTIRMAY BHATTACHARYA

body2008
Judgment :- (1.) THIS application under Article 227 of the Constitution of India is directed against an order being No. 8 dated 22nd April, 2008 whereby the learned Trial judge rejected the defendants application under Order 7 Rule 10 read with section 21 of the Code of Civil Procedure. (2.) THE propriety of such an order is under challenge in this application at the instance of the defendants/petitioners herein. (3.) LET me now consider as to how far the learned Trial Judge was justified in rejecting the defendants said application in the facts of the instant case. (4.) THE plaintiffs filed a suit for declaration of their title in respect of the suit property. In the said suit, a decree for injunction was sought for against the defendants for restraining them from changing the nature and character of the suit property. A decree for permanent injunction has also been sought for against the defendants, for restraining them from transferring and/or alienating the suit property in favour of any third party. A decree for recovery of possession was also sought for against the defendants in the said suit. (5.) THUS, it appears from the plaint that diverse reliefs were claimed by the plaintiffs on the basis of common cause of action which is as follows :- The plaintiffs claimed that the suit property was the khasmahal land of the State. They further claimed that the State of West Bengal settled the said khasmahal land in favour of their predecessor-in-interest. The plaintiffs inherited the suit property from their predecessor-in-interest after their death. The naxme of the plaintiffs were also recorded as owners of the suit property in the revenue records of the State. After change of the name of the road on which the suit property situates, the number of the original holding of the suit property was changed by the Calcutta Municipal Corporation and several holdings were created out of the parent land holding by the Corporation. All on a sudden the plaintiffs found that the defendant No. 4 namely Puja Constructions started raising construction on the suit property without obtaining any permission and/ or consent from the plaintiffs. The plaintiffs also came to know from the municipal records that the names of the defendant nos. 1, 2 and 3 were recorded as transferee owners of the suit holdings. The plaintiffs also came to know from the municipal records that the names of the defendant nos. 1, 2 and 3 were recorded as transferee owners of the suit holdings. A building plan was also sanctioned by the Municipal Authority in favour of the defendants and the defendant No. 4 being a promoter/developer has started raising construction on the suit property as an agent of the said defendant Nos. 1, 2 and 3. (6.) IN such circumstances, the plaintiffs filed the aforesaid suit seeking the aforesaid reliefs against the defendants. In the concise statement of the plaint, the plaintiffs stated that the suit for declaration, permanent injunction and recovery of khas possession is valued at Rs. 3,210/ -. In paragraph 20 of the said plaint the plaintiffs stated that for ascertaining the jurisdiction of the court and for payment of Court fees, the suit is valued at Rs. 3,210/- with the following break up i. e. for declaration of Rs. 100/-, for injunction Rs. 100/-, for recovery of possession, Rs. 3,000/- and for mesne profit Rs. 10/-tentatively. Court fees were also paid on such valuation of the plaint. (7.) IN this context, the defendants/petitioners filed an application under order 7 Rule 10 with Section 21 of the Code of Civil Procedure contending inter alia that since the plaintiffs are admittedly out of possession and since a decree for recovery of possession has been sought for, the plaintiffs ought to have valued the relief for recovery of possession at the prevailing market rate of the suit land which is not less than Rs. 1 crore and thus, the plaintiffs are required to pay ad valorem Court fees on such valuation. The defendants produced their purchase deeds to show the present market price of the suit property and thus, claimed that since the valuation of the suit property is more than Rs. 1 crore, the suit cannot be tried by the Court of the learned Civil judge, Junior Division, Sealdah due to lack of pecuniary jurisdiction. Accordingly the defendants prayed for return of the plaint to the plaintiffs. (8.) THE learned Trial Judge rejected the petitioners said application by the impugned order by holding inter alia that since the relief for injunction and for recovery of possession are consequential reliefs, such reliefs can not be granted unless the plaintiffs prayer for declaration of their title in the suit property is allowed. (8.) THE learned Trial Judge rejected the petitioners said application by the impugned order by holding inter alia that since the relief for injunction and for recovery of possession are consequential reliefs, such reliefs can not be granted unless the plaintiffs prayer for declaration of their title in the suit property is allowed. According to the learned Trial Judge, such suit, for the purpose of computation of Court fees falls under Section 7 (iv) (b) of the West bengal Court Fees Act, 1970 and, as such, the plaintiffs are not required to value the suit as per the provision, contained in Section 7 (v) (b) of the West bengal Court Fees Act, 1970. (9.) THUS, the defendants prayer for return of the plaint to the plaintiffs was rejected by the learned Trial Judge. (10.) THE defendants felt aggrieved against the said order. Accordingly, the instant revisional application was filed. (11.) MR. Dasgupta, learned Senior Counsel, appearing for the defendants/petitioners submitted that when the principal relief in the suit is recovery of possession of the immovable property with a declaration of title incidentally, the suit should have been valued as per the provision of Section 7 (v) (b) of the West Bengal Court Fees Act, 1970. According to Mr. Dasgupta, conjoint reading of Section 7 (v) (b) and Section 7 (vi) (a) of the West Bengal court Fees Act, 1970 makes it clear that when recovery of possession of immovable property is sought for against a trespasser, where no declaration of title to property is either prayed for or necessary for disposal of the suit, suit should be valued according to the amount on which the relief sought is valued in the plaint subject to provision of Section 11. (12.) MR. Dasgupta thus, submitted that since a declaration of title has been sought for in the present suit along with the prayer for recovery of possession, the instant suit cannot be classified as a suit falling under Section 7 (vi) (a) of the said Act. Mr. Dasgupta thus, contended that when recovery of possession is sought for together with the prayer for declaration of the plaintiffs title, suit falls under the classification of Section 7 (v) (b) and accordingly, the plaintiffs are required to value the said suit according to the market value of the suit property as the profit arising therefrom is not readily ascertainable and assessable. (13.) MR. (13.) MR. Dasgupta further contended that if the valuation of the suit property is made by the plaintiffs arbitrarily and whimsically for avoiding payment of ad valorem Court fees and/or to evade payment of appropriate court fees or for conferring jurisdiction on some Court which it does not have or for depriving the Court of jurisdiction which it would otherwise have, the court can certainly interfere, both under the provisions of Court Fees Act as well as under the provisions of the Suit Valuation Act. (14.) MR. Dasgupta further submitted that it is the substance of the relief sought for and not the form which is the determining factor for valuation of the suit. For ascertaining the correctness of the valuation statement, the Court is required to scan the averments made by the plaintiffs in the plaint itself by taking each averment in the plaint as true and correct. (15.) IN support of such submission Mr. Dasgupta relied upon the following two decisions of the Honble Supreme Court :-1. In the case of Abdul Hamid Shamsiv. Abdul Majid and Ors. , reported in (1988)2 SCC 575 . 2. In the case of Kamaleshwar Kishore Singh v. Paras Nath Singh and Ors. reported in (2002) 1 SCC 304 . (16.) BY referring to the averments in the plaint and the reliefs claimed therein, Mr. Dasgupta submitted that the primary relief claimed in the said suit is the decree for recovery of possession but since declaration of title is also sought for in such suit, the said suit, according to Mr. Dasgupta, should be classified under Section 7 (v) (b) of the West Bengal Court Fees Act, 1970. (17.) THUS, Mr. Dasgupta invited this Court to interfere with the impugned order. (18.) MR. Mitra, learned Senior Counsel, appearing for some of the opposite parties refuted the submission of Mr. Dasgupta by contending inter alia that the suit as framed and the reliefs as claimed in the said suit cannot be classified either under Section 7 (v) (b) or under Section 7 (vi) (a) of the West bengal Court Fees Act, 1970. By reading the entire pleadings of the plaint, Mr. Mitra submitted that in the instant suit the primary relief is the relief for declaration of title. By reading the entire pleadings of the plaint, Mr. Mitra submitted that in the instant suit the primary relief is the relief for declaration of title. The other reliefs which are claimed by the plaintiffs in the said suit either by way of injunction or for recovery of possession, according to mr. Mitra, are incidental and/or consequential reliefs as those reliefs cannot be granted unless the plaintiffs title in the property is declared. (19.) MR. Mitra further submitted that on the basis of the cause of action pleaded in the plaint the plaintiffs are entitled to get diverse reliefs and, as such, those reliefs were joined together in the said suit but in any event the relief for injunction and/or recovery of possession cannot be granted independently unless the plaintiffs title in the suit property is declared. Under such circumstances, Mr. Mitra submitted that for the purpose of computation of Court fees, such suit should be valued as per the provision contained in section 7 (iv) (b) of the West Bengal Court Fees Act, 1970. (20.) IN support of his submission Mr. Mitra cited the following decisions wherein it was uniformly held that if the principal relief is declaration of any right and if the other reliefs claimed in the suit can only be granted, if the declaration of title as sought for, is granted then the other relief should be regarded as consequential reliefs and under such circumstances, the suit should be classified under Section 7 (iv) (b) of the West Bengal Court Fees Act, 1970 :- 1. In the case of Smt. Dhiraj Bala Karia v. Jethia Estate Pvt. Ltd. reported in AIR 1983 Calcutta page 166 (Special Bench). 2. In the case of Naba Kumar Das v. Damodar Das reported in (1992)2 Cal HN 482. 3. In the case of Paresh Chandra Nath v. Naresh Chandra Nath and ors. , reported in (2006)1 Cal HN 526. 4. In the case of Tara Devi v. Sri Thakur Radha Krishna Maharaj reported in AIR 1987 SC page 2085. (21.) MR. Mitra, thus, contended that in a suit where the plaintiffs have prayed for declaration of his title and for permanent injunction and/or for recovery of possession by way of consequential relief, the correct mode of valuation for such relief is to put a single valuation and the option of valuing the relief rests with the plaintiffs. (22.) MR. (21.) MR. Mitra, thus, contended that in a suit where the plaintiffs have prayed for declaration of his title and for permanent injunction and/or for recovery of possession by way of consequential relief, the correct mode of valuation for such relief is to put a single valuation and the option of valuing the relief rests with the plaintiffs. (22.) MR. Mitra further contended that separate valuation of the reliefs which have been given by the plaintiffs in the suit is merely a surplusage and if the Court finds that excess Court fees have been paid by the plaintiffs, the court can even refund the excess Court fees to the plaintiffs. In support of such submission Mr. Mitra also relied upon the following decisions of this honble Court :-1. In the case of Balaram Mondalv. Sahebjan reported in AIR 1950 calcutta page 85. 2. In the case of Jitendra Nath Mukherjee v. Commissioners of baduria Municipality and Ors. reported in AIR 1967 Calcutta 423. (23.) IN the aforesaid context, Mr. Mitra supported the judgment of the learned Trial Judge. (24.) MR. Roy Chowdhury, learned Senior Counsel, appearing for the other set of opposite parties also supported the submission of Mr. Mitra. Mr. Roy chowdhury, however, referred to the following four decisions to strengthen his submission in support of his impugned order :-1. In the case of S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar reported in AIR 1958 SC 245 . 2. In the case of Mahitosh Mookherjee v. Satyaranjan Chatterjee reported in 1953 Cal WN page 340. 3. In the case of Panchi Bala Midda v. Namita Rani Dey Chowdhury reported in AIR 1996 Calcutta 133. 4. In the case of Bani Basu and Ors. v. Sachindra Nath Ghosh and Anr. reported in (2008)2 Cal HN 165. (25.) LET me now consider the submissions of the learned Counsel of the respective parties in the facts of the instant case. (26.) THE cause of action pleaded by the plaintiffs in the plaint as well as the reliefs claimed in the suit have already been mentioned above. v. Sachindra Nath Ghosh and Anr. reported in (2008)2 Cal HN 165. (25.) LET me now consider the submissions of the learned Counsel of the respective parties in the facts of the instant case. (26.) THE cause of action pleaded by the plaintiffs in the plaint as well as the reliefs claimed in the suit have already been mentioned above. On careful reading of the averments made in the plaint as well as the reliefs claimed therein, this Court holds with all certainty that the reliefs which were claimed by the plaintiffs in the suit either by way of injunction or by way of recovery of possession are dependent upon the relief for declaration of title. This Court also holds that the relief for declaration is not the only relief which is sufficient in the facts of the instant case and if declaration only, is sought in such case, the suit will be barred under Section 34 of the Specific Relief Act. In fact, the plaintiffs are entitled to diverse reliefs in the facts of the instant case but the reliefs by way of injunction and/or recovery of possession cannot be granted unless their title in the suit property is declared. (27.) THIS is not a suit where the defendants were described as rank trespassers. The plaint averment shows that the defendants are in possession of the suit property on a show of title. The plaintiffs, no doubt, have challenged the legality of the defendants title in the property on the strength of the settlement of the suit land given by the State of West Bengal in favour of the plaintiffs predecessor-in-interest. Thus, in fact, for tracing the title of the real title holder, declaration of the plaintiffs title was sought for, in the suit. If the said declaration is not granted then the other reliefs either by way of injunction or by way of recovery of possession cannot be granted independently in favour of the plaintiffs. As such, this Court has no hesitation to hold that the relief by way of declaration is the principal relief in the suit and the relief for injunction and recovery of possession are incidental and consequential reliefs. As such, this Court has no hesitation to hold that the relief by way of declaration is the principal relief in the suit and the relief for injunction and recovery of possession are incidental and consequential reliefs. As such, the plaintiffs are required to value the entire suit as per the provision contained in Section 7 (iv) (b) of the West Bengal Court Fees Act, 1970 and not under section 7 (v) (b) of the said Act as contended by Mr, Dasgupta. The decisions which were cited by Mr. Mitra and Mr. Roy Chowdhury are squarely applicable in the facts of the instant case and thus, this Court has no hesitation to hold that the learned Trial Judge did not commit any illegality by rejecting the defendants application for return of the plaint. (28.) IN my opinion the suit has been properly valued and the learned trial Judge has jurisdiction to try the said suit. (29.) THE Revisional application, thus, stands rejected.