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2014 DIGILAW 817 (CAL)

In Re : Santosh Kumar Das v. .

2014-08-26

SUBRATA TALUKDAR

body2014
JUDGMENT : Subrata Talukdar, J. 1. Sri Biswarup Biswas, learned counsel, appears on behalf of the petitioners. Sri Samarendra Nath Biswas, learned counsel, appears on behalf of the opposite parties. 2. The short challenge in CO 2928 of 2007 is to the order impugned no. 59 dated 28th of June, 2007 passed by the learned Civil Court (Junior Division), Tehatta, Nadia in Title Suit No. 443 of 2004. 3. By the said impugned order the learned Trial Court was pleased to come to the finding that at the time of writing judgment it came to the notice of the Court that the declaration of title to the property is necessary for adjudication of this suit. The plaintiffs have filed the suit for recovery of possession of suit property and mesne profit without making a prayer for declaration of title. 4. The learned Trial Court was therefore of the considered view that for the purpose of Court fees and jurisdiction the suit cannot be valued, as done by the plaintiffs under Section 7(vi) (a) of the West Bengal Court Fees Act, 1970. In the opinion of the learned Trial Court the valuation cannot be done in terms of the said Section 7(vi) (a) of the said Court Fees Act since declaration of title to the suit property is necessary for making a consequential prayer for recovery of possession. Therefore, the learned Trial Court took the view that the suit should be valued according to Section 7(v) of the West Bengal Court Fees Act, 1970. In view of such decision, the learned Trial Court refrained from delivery of judgment and stayed all further proceedings in the suit until the correct determination of the Court fees and realisation thereof. 5. Aggrieved by the said order impugned dated 28th of June, 2007, the present petitioners/plaintiffs have filed CO 2928 of 2007. 6. Sri Biswarup Biswas, learned counsel appearing for the petitioners/plaintiffs, takes this Court to the pleadings in Title Suit No. 443 of 2004. Sri Biswas submits that from the pleadings it shall be clear that the predecessor-in-interest of the petitioners/plaintiffs was the absolute owner of the suit premises. The right, title and interest of the predecessor-in-interest of the petitioners/plaintiffs was declared in his favour vide decree in Title Suit No. 286/1961. By the said decree the R.S. Record was also declared to be erroneous. 7. The right, title and interest of the predecessor-in-interest of the petitioners/plaintiffs was declared in his favour vide decree in Title Suit No. 286/1961. By the said decree the R.S. Record was also declared to be erroneous. 7. Sri Biswas further submits that consequent to such declaration of the right, title and interest of the predecessor-in-interest of the present petitioners/plaintiffs in the suit property, the LR Records was correctly recorded in the names of the present petitioners. The present petitioners have been paying rent and taxes to the State. Upon the death of one Purnima Das widow of the predecessor-in-interest of the petitioners/plaintiffs, Bhakta Ram Das, her share devolved upon her three sons, viz. the plaintiffs. 8. Sri Biswas points to the further fact that the Title Suit No. 443 of 2004 has been necessitated by the fact that the present opposite parties/defendants are trying to dispossess the petitioners/plaintiffs from the suit property. Accordingly, it became necessary for the petitioners/plaintiffs to pray for a decree for recovery of possession in respect of the suit property in which admittedly the petitioners/plaintiffs are the co-owners. 9. Sri Biswas further points out that in view of the admitted position in the plaint with regard to the ownership of the suit property in favour of the petitioners/plaintiffs, the decree for recovery of possession was valued under Section 7(vi)(a) of the West Bengal Court Fees Act, 1970. He submits that the learned Trial Court erred in directing that the suit be valued according to Section 7(v) of the West Bengal Court Fees Act, 1970. 10. In support of his submission, Sri Biswas relies upon the judgment of this Court reported in 2008(2) CLJ (Cal) page 306 in the matter of Sri Kartick Mondal & Ors. v. Sri Biman Sen & Ors. wherein it was held as follows:- “27. 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. 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. 28. 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, the plaintiffs are required to value the entire suit as per the provision contained in 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.” 11. 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.” 11. Sri Biswas also relies upon an unreported decision of this Hon’ble Court in CO 289 of 2014 in the matter of Ujjala Das v. Pannalal Basu. Following the decision of the Co-ordinate Bench of this Hon’ble Court in Paresh Chandra Nath v. Naresh Chandra Nath reported in [2006] 1 CHN 526, the Hon’ble Single Bench, inter-alia, held as follows: “This Court finds that the valuation, required to be put on such a suit, should be under Section 7 (iv) of the said Act and not Section 7 (vi) of the said Act. The main relief claimed in the plaint relates to declaration of title and the consequential relief flows therefrom is the recovery of possession on the strength of title. The aforesaid proposition can be fortified from the judgment of a Co-ordinate Bench, rendered in the case of Paresh Chandra Nath v. Naresh Chandra Nath & Others, reported in 2006 (1) CHN 526 , where the Court has held that if the parent relief is capable of being valued as per the plaint, the consequential relief, being dependant thereupon, cannot be valued independently. This Court, therefore, does not find any infirmity and/or illegality in the impugned order. The revisional application is devoid of merit. The same is accordingly dismissed. There shall, however, be no order as to costs.” 12. Another decision relied upon by Sri Biswas in the matter of Smt. Bina Roy v. Smt. Basanti Bhattacharya & Ors. reported in (2009) 1 WBLR (Cal) 227 is an authority for the proposition that with regard to the payment of proper Court fees on a plaint, the same is primarily an issue between the plaintiff and the State. 13. Per contra, Sri S.N. Biswas, learned counsel appearing for the opposite parties, submits that the learned Trial Court did not commit any error in holding that the Court fees payable on the plaint must be in terms of Section 7(v) of the West Bengal Court Fees Act, 1970 since the plaint is one pertaining to declaration of title to property in the suit. 14. 14. Sri Biswas takes this Court to the relevant pleadings in the plaint of Title Suit No. 443 of 2004 and particularly paragraph 6(a) thereof. He argues that it is the admission of the plaintiffs that the wife of the said Bhakta Ram Das, one Purnabala Dasi (both since deceased) is said to have purchased some portions of the suit property from the opposite parties/defendants. In that view of the matter, Sri Biswas submits that the question of declaration of title of the plaintiffs in the suit property becomes necessary and, in the absence of payment of Court fees connected to a prayer for declaration of the title, the suit cannot be proceeded with. 15. Heard the parties. Considered the materials on record. 16. This Court is of the view that the judgments of the Hon’ble Single Bench in Kartick Mondal’s case (supra) and Sri Ujjala Das’s case (supra) are apposite to the facts and circumstances of the case. This Court finds that having regard to the relief recovery of possession prayed for in the plaint and having regard to the nature of the pleadings made in the plaint and discussed above in this judgment, such reliefs are dependent upon the relief of declaration of title. Also having regard to the factual matrix of the facts pleaded in the plaint, this Court is in concurrence with the view taken by the Hon’ble Single Bench in Kartick Mondal’s case (supra) that although the relief in the plaint may be valued, the reliefs for injunction and/or recovery of possession cannot be granted unless the title of the plaintiffs in the suit property is declared. 17. In the backdrop of the above discussion, this Court is inclined to be persuaded to take the view following the judgments referred to above that the plaintiffs are required to value the suit as per provisions contained in Section 7(iv) (b) of the West Bengal Court Fees Act, 1970 and not Section 7(v) (b) of the said Act. 18. In the light of the above observations, the order impugned no. 59 dated 28th of June, 2007 passed by the learned Civil Court (Junior Division), Tehatta, Nadia in Title Suit No. 443 of 2004 is accordingly modified. 19. 18. In the light of the above observations, the order impugned no. 59 dated 28th of June, 2007 passed by the learned Civil Court (Junior Division), Tehatta, Nadia in Title Suit No. 443 of 2004 is accordingly modified. 19. The plaintiffs are required to take steps on the basis for valuing the suit as per the provisions of Section 7(iv)(b) of the West Bengal Court Fees Act, 1970 within two weeks from the date of communication of this order and, on such steps being taken, the learned Trial Court shall proceed further with the hearing of the suit. 20. CO 2928 of 2007 is accordingly disposed of. 21. There will, however, be no order as to costs. 22. Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities.