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2012 DIGILAW 4354 (MAD)

V. Pechiammal v. Murugan

2012-10-16

S.PALANIVELU

body2012
ORDER The petitioners are the plaintiffs in O.S.No.31 of 2010 on the file of the Subordinate Court, Srivilliputhur. This is a suit for partition. The dispute is with respect to 2nd schedule of the suit property. In the suit, they have prayed for a decree of partition of their 5/7th share and also for declaring that the sale executed by the defendants 1 and 2 to the third defendant vide Document No.517 of 1999 in the office of the Sub-Registrar's Office, Srivilliputhur is null and void. 2. The Subordinate court, Srivilliputhur has issued directions to the effect that even though this is a suit for partition, by virtue of the sale deed in favour of the third defendant, the third defendant is in possession of the property and the plaintiffs have been excluded from possession and hence, proper Court Fee payable is under Section 37(1) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 and not Section 37(2) of the Act. The Court below has considered the value and directed to pay Court Fee under Section 37(1) of the Act at Rs.30,000.50. Since Rs.750/- was already paid under Section 37(2) of the Act and that after deducting the same, the plaintiffs have to pay Deficit Court Fee of Rs.29,250.50. 3. They submitted objections to the same by stating that in view of the stranger is in possession of the joint family property until the plaintiffs are proved to be ousted from the possession, it is to be treated that they are in constructive joint possession of the property. However, the Court below did not accept the said contention and rejected the same stating that the possession of one family member can operate as constructive possession and when a third party is in possession as the purchaser, no constructive possession can be presumed. Hence, the plaintiffs were directed to pay the balance Court Fee by 18.1.2012. This is the order challenged before this Court. 4. Learned counsel appearing for petitioners, Mr.T.S.R.Venkat Ramana, would contend that inasmuch as this is a suit for partition filed by the joint family members of H.U.F. and a stranger is stated to be in possession, even if the Court Fee is to be fixed under Section 37(1) of the Act, since the second schedule of the suit property is ryotwari land, its value should have been calculated on that basis. 5. 5. It is advantageous to extract Section 7 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, which is relevant to this issue. "7. Determination of market value(1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint. (2) The market value of land in suits falling under Sections 25(a), 25(b), 27(a), 29, 30, 37(1), 37(3), 38, 45 or 48 shall be deemed to be- (a) where the land is ryotwari land thirty times the survey assessment on the land: Provided that, where the land forms part of a survey field and is not separately assessed to revenue, the value of such part shall be deemed to be thirty times such proportion of the survey assessment as the part bears to the entire survey field." 6. The Court below proceeded to calculate the Court Fees payable by the plaintiffs for the relief of partition. As far as the second schedule is concerned, it should have taken note of the fact that it is an agricultural land and the value of the land is to be deemed as thirty times the survey assessment. The learned counsel for the petitioners placed reliance upon the decision of this Court in Krishnakanthan and another v. Esakki Ammal and others [ 2006 (3) CTC 151 ] rendered by K.Raviraja Pandian,J as then he was, who dealt with the calculation of Court Fee when it is a ryotwari land by virtue of operative provision under Section 7 of the Act. Paragraphs 8 and 9 of the order are extracted hereunder: "8. As seen from the plaint, the relief sought for by the petitioners/plaintiffs is only for recovery of possession of the vacant land. Apart from that, the A-register has been marked at the instance of the petitioners/plaintiffs, which also fortified the case of the petitioners/plaintiffs that the land has been described as Ryotwari land and no construction has been noted therein. 9. In the light of the above factual position, if we consider Section 7 of the Court Fee Act, which prescribes the Court Fee payable depending upon the market value of the property and such value shall be determined as on the date of presentation of the suit. 9. In the light of the above factual position, if we consider Section 7 of the Court Fee Act, which prescribes the Court Fee payable depending upon the market value of the property and such value shall be determined as on the date of presentation of the suit. The market value of the land in suits under Sections 25(a), 25(b), 27(a), 29, 30, 37(1), 37(3), 38, 45 or 48 of the Court Fee Act shall be deemed to be where the land is assessed 30 times the survey assessment on the land. The proviso is not relevant to the facts of the case." 7. As similar facts available in the above said case, in this case also, since the 2nd schedule suit property is ryotwari land, appropriate Court Fee payable is 30 times the survey assessment on the land and the plaint should be amended by the plaintiffs on the basis of provision in Section 7 of the Act and intimate the Court below correct valuation of the suit for the relief under Section 37(1) of the Act. Even if the suit is valued under Section 37(2), by virtue of Section 7(2) of the Act, since the land is ryotwari land, the market value of the property is only thirty times the survey assessment on the land. In such view of this matter, the check slip issued by the Court below is liable to be set aside and accordingly, set aside. 8. The plaintiffs are directed to value the relief for the second schedule item of the suit property as per section 7(2) of the Act and calculate the market value of the property i.e. 30 times the survey assessment on the land and to incorporate necessary amendments in the plaint with regard to Court Fee payable by the plaintiffs. 9. In fine, the Civil Revision Petition is allowed. Connected Miscellaneous Petition is closed. No costs. CRP allowed.