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2016 DIGILAW 158 (CAL)

Subrata Chakraborty v. Subir Kumar Chakraborty

2016-02-10

INDRAJIT CHATTERJEE

body2016
JUDGMENT : Indrajit Chatterjee, J. This application under Article 227 of the Constitution of India has been preferred by the present plaintiff petitioner against the defendants who are the opposite parties before this Court. The fact relevant for the purpose of assessing this revisional application can be stated in brief thus: That the present petitioner initially brought against his mother one suit for declaration, injunction and the learned Civil Judge having jurisdiction heard that Title Suit No.329 of 1997 and subsequently after the demise of his mother the present opposite parties were substituted and as per the prayer of the petitioner the plaint was amended incorporating certain facts including a prayer for recovery of possession. Initially such prayer for amendment was rejected by the learned trial judge and against that order one revisional application was preferred being C.O. No.2820 of 2007 and that was disposed of vide order dated 12th of December, 2007. In that amendment petition a separate prayer was added for recovery of possession. 2. In the present revisional application the order No.96 dated 17.01.2013 has been assailed before this Court wherein the learned trial court taking into consideration Section 11 of the West Bengal Court Fees Act proceeded to examine the correctness of the valuation. In that process the learned trial court directed the collector South 24 Parganas to assess on inquiry the exact valuation of the suit property. It may be noted that as per order of this Court dated 6th of August, 2013 the said order of the learned trial court was stayed and the said stay is still continuing. 3. At the time of hearing of argument it was argued on behalf of the petitioner plaintiff by taking me to Section 11 of the West Bengal Court Fees Act to say that as per that Section 11 every Court has the right to assess the valuation of a particular property, if the court feels that the suit was wrongly valued and the court may revise the valuation and determine the correct valuation as may be held after such inquiry as it thinks fit for such purpose. He submitted that as per the plaint the petitioner plaintiff is entitled to assess the valuation as per his own choice. He submitted that as per the plaint the petitioner plaintiff is entitled to assess the valuation as per his own choice. The learned counsel relied upon the decision of this Court as reported in Kartick Mondal v. Biman Sen, 2008 (4) CHN 197 wherein this Court held that the plaintiffs before that court were entitled to diverse reliefs in the fact of that 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 and as such in that decision the plaintiffs were 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. 4. In counter to all these learned lawyer appearing on behalf of the opposite parties submitted by taking me to the copy of the plaint to convince this Court that the suit was filed not only for declaration and injunction but also for recovery of possession and the suit was valued at Rs.10,110 only. She also took me to the schedule of that plaint and as per that schedule the suit property is 3 Khattas 4 Chataks and 38 square feet of land with one storied building and partially 2 storied building thereon pertaining to Mouza-Bansdroni within the limits of Calcutta Municipal area. She submitted that the present suit is an instance of under valuation. She further submitted that in that Title Suit the prayer is for declaration, injunction and also for recovery of Khas possession and that be so the suit must be valued on the basis under Section 7(v)(b) and Section 7(vi) of the West Bengal Court Fees Act read with Section 11 of the said Act and the Court has every power to see that the property is valued property under Section 11 of the said Act. 5. The learned counsel cited two decisions of our Hon'ble Court as reported in Sari Mahanti v. Ghauiram Mahata, AIR 1997 Cal 152 wherein this Court was pleased to direct that in case of recovery of possession of property the suit must be valued under Section 7(v) and not under Section 7(iv)(b) of the Court Fees Act. 6. 5. The learned counsel cited two decisions of our Hon'ble Court as reported in Sari Mahanti v. Ghauiram Mahata, AIR 1997 Cal 152 wherein this Court was pleased to direct that in case of recovery of possession of property the suit must be valued under Section 7(v) and not under Section 7(iv)(b) of the Court Fees Act. 6. The other decision she cited is reported in Belarani Bhattacharyya v. Khondkar Asasar Rahaman, AIR 1975 Cal 79 wherein also this Court held that in a suit for declaration that the disputed lands are 'Pirottar' properties and for recovery of possession the petitioner will have to pay court fees on the value of the disputed lands and not on the valuation made by the plaintiff. 7. On reading and rereading the impugned order this Court is satisfied that the learned trial court was not satisfied with the valuation as given by the present plaintiff/petitioner and as such she invoked the jurisdiction of the Court under Section 11 of the said Act to direct the Collector, South-24 Parganas to assess the valuation of such land. This Court is satisfied that under Section 11 of the said Act the court has every power to assess the valuation and in doing so the court may very well ask for a report of the Collector having jurisdiction to assess finally the valuation of the property. This Court is satisfied that in view of the plaint the present petitioner plaintiff must pay the court fees on the market value of the land. 8. Thus, in view of the discussion made above this Court is satisfied that the application under Article 227 of the Constitution of India is fit to be allowed and I do that. There will be no cost for this litigation. 9. A copy of this order be forwarded to the Civil Judge (Junior Division), 1st Court at Alipore within the District-South 24 Parganas in connection with Title Suit No.329 of 1997 as regards his order No.96 dated 17th January, 2013. 10. The petitioner is directed to inform about this order to be forwarded to the Civil Judge (Junior Division), 1st Court at Alipore within the District-South 24 Parganas in connection with Title Suit No.329 of 1997 as regards the order No. 96 dated 17th January, 2013. 11. 10. The petitioner is directed to inform about this order to be forwarded to the Civil Judge (Junior Division), 1st Court at Alipore within the District-South 24 Parganas in connection with Title Suit No.329 of 1997 as regards the order No. 96 dated 17th January, 2013. 11. The learned Court will try to dispose of this suit as early as possible, considering the fact that this suit is almost pending for two decades. 12. Office is directed to transmit of this order to the said learned court below. Later : Dated : April 11, 2016. 13. My attention is drawn by the learned Advocate appearing on behalf of the respondents/opposite parties by taking me to page-4 of this judgment on 10.02.2016. She took me to paragraph mentioned below of the judgment. "Thus, in view of the discussion made above this Court is satisfied that the application under Article 227 of the Constitution of India is fit to be allowed and I do that. There will be no cost for this litigation". 14. On hearing the learned Advocate for the respondents and considering the other recital of the judgment, this Court of the view that actually the application filed by the petitioner under Article 227 of the Constitution of India was to be rejected but instead of the order of rejection, it was followed by an order that the application be allowed. 15. Thus, in the circumstances, this paragraph as stated above be substituted in the manner stated below : "Thus, in view of the discussion made above this Court is satisfied that the application under Article 227 of the Constitution of India is fit to be rejected and I do that. There will be no cost for this litigation". 16. Let this order be treated as part of the judgment referred to above The other portion of the judgment will remain as it is. 17. Office is directed to transmit this order also to the learned trial Court in relation to the judgment dated 20.02.2016 in connection with the above noted civil order. 18. None is present on behalf of the petitioner even though, it is submitted by Ms. Ghosh Sharma that she informed her counter-part. Revisional application dismissed.