Rajasthan High Court - Jodhpur
Kamal Kishore vs Loon Karan on 17 August, 2022
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 9744/2022
1. Kamal Kishore S/o Ramswaroop, Aged About 52 Years,
18/147, Chopasani Housing Board, Tehsil And District
Jodhpur.
2. Suresh Kumar, Aged About 55 Years, 18/147, Chopasani
Housing Board, Tehsil And District Jodhpur.
3. Shanti Devi W/o Ramswaroop, Aged About 70 Years,
18/147, Chopasani Housing Board, Tehsil And District
Jodhpur.
----Petitioners
Versus
1. Loon Karan S/o Amrit Lal, Aged About 65 Years, B 4 A/14,
Ground Floor, Near Gita Mandir, Rana Pratap Bagh, Delhi.
2. Lalit S/o Amrit Lal, Aged About 60 Years, B 4 A/14,
Ground Floor, Near Gita Mandir, Rana Pratap Bagh, Delhi.
3. Dinesh Kumar S/o Amrit Lal, Aged About 55 Years, B 4
A/14, Ground Floor, Near Gita Mandir, Rana Pratap Bagh,
Delhi.
4. Vinod S/o Ratan Lal, Aged About 34 Years, B 4 A/14,
Ground Floor, Near Gita Mandir, Rana Pratap Bagh, Delhi.
5. Sawai Ram S/o Ratan Lal, Aged About 44 Years, B 4 A/14,
Ground Floor, Near Gita Mandir, Rana Pratap Bagh,
Delhi.
6. Gayatri W/o Ratan Lal, Aged About 75 Years, B 4 A/14,
Ground Floor, Near Gita Mandir, Rana Pratap Bagh,
Delhi.
----Respondents
For Petitioner(s) : Mr Sanjay Nahar
Mr Pushkar Taimni
For Respondent(s) : Mr O.P.Mehta
Mr Sanjay Gupta
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(2 of 7) [CW-9744/2022]
HON'BLE MR. JUSTICE VIJAY BISHNOI
Judgment / Order 17/08/2022 This writ petition is filed by the petitioner-plaintiffs challenging the order dated 04.05.2022 passed by Additional District Judge No.1, Barmer (for short 'the trial court' hereinafter) in case No.41/2021, whereby the application filed by the plaintiffs under Order 6 Rule 17 read with Section 151 CPC for amendment of the plaint has been allowed and the application filed by respondent-defendants under Section 11 of the Rajasthan Court Fees and Suit Valuation Act, 1961 (hereinafter to be referred as 'the Act of 1961') has been partly allowed and it has been held that the petitioner-plaintiffs though pleaded in their plaint that the property in question is ancestral but not pleaded that they are in possession of the property, therefore, they are required to pay court fees as per the provisions of Section 35(1) of the Act of 1961 on the market value of the property. The trial court has further directed the petitioner-plaintiffs to pay proper court fees on market value of the property within two months.
Brief facts of the case are that the petitioner-plaintiffs filed a suit for partition in relation to a property situated at Mohalla Railway Station, Barmer claiming as ancestral. It was averred that the said property was received by Amrit Lal, Ratan Lal and Ramswaroop through their father viz. Akheraj. Respondent Nos. 1 and 2 in the writ petition have released their share in the above mentioned property in favour of respondent No.3 of the writ petition, however, instead of releasing 1/3rd share, they illegally released the complete property in favour of him. (Downloaded on 17/08/2022 at 08:38:17 PM)
(3 of 7) [CW-9744/2022] It is contended that shops and a house constructed on the property was being rented out to one M/s Bhagwati Electricals without seeking permission of the petitioners and later on except one shop, the complete structure built on the plot was demolished by the respondents without informing the petitioners. It is also averred that the respondents have attempted to change the nature of property in question and the request of the petitioners to partition the property was denied by the respondents.
The petitioners have averred in the plaint that the property in question is valued at rupees one crore and based on that court fees of Rs.200/- has been furnished. The petitioners have prayed that a decree partition of the property be issued and also sought for injunction to the effect that the respondent Nos.1 to 3 should not further sell the property as well as change the nature of the property. It was also prayed that the released deed executed by the respondent Nos.1 and 2 in favour of respondent No.3 shall be declared as null and void.
The respondents herein filed an application under Section 11 of the Act of 1961 contending that the petitioners have filed a suit for declaration of the release deed as null and void and further prayed for injunction against the respondents but proper court fees of this effect have not been furnished. It was prayed that the petitioners be directed to pay proper court fees or else, the suit be dismissed.
At this stage, the petitioners filed an application under Order 6 Rule 17 CPC with a prayer to allow them to amend the plaint and delete the paragraphs 12(2) i.e. the prayer for declaration of release deed as null and void. The case of the (Downloaded on 17/08/2022 at 08:38:17 PM) (4 of 7) [CW-9744/2022] petitioners was that the release deed is void ab initio, hence, there is no need to get it declared 'null and void'.
The learned trial court after hearing the parties has allowed the application filed by the petitioners under Order 6 Rule 17 CPC and also deleted the paragraph 12(2) of the plaint, however, partly allowed the application under Section 11 of the Act of 1961 filed on behalf of the respondents and directed the petitioners to pay court fees on the market value of the property within two months.
Assailing the order dated 04.05.2022, learned counsel for the petitioners has argued that the trial court has failed to appreciate that the petitioners have nowhere specifically pleaded that they had been excluded from the possession in their plaint. The finding of the trial court that as the petitioners have not claimed to be in joint possession of the property in question, it would mean that the petitioners are excluded from the possession, is perverse and cannot be sustained.
Learned counsel for the petitioners has submitted that for the purpose of valuation of court fees, the court is required to look into the plaint only and from the wholesome reading of the plaint filed by the petitioners, it cannot be said that the petitioners have ever pleaded that they are excluded from possession of the property in question.
In support of the above contentions, learned counsel for the petitioners has placed reliance on a decision of Hon'ble Supreme Court rendered in Neelavathi and Ors. vs. N.Natarajan and Ors., reported in AIR 1980 SC 691 and argued that the impugned order passed by the trial court up to the (Downloaded on 17/08/2022 at 08:38:17 PM) (5 of 7) [CW-9744/2022] extent of direction to pay court fees on the market value within two months be set aside.
Per contra, learned counsel appearing for the respondents has vehemently opposed the writ petition and argued that the trial court has not committed any illegality in passing the impugned order as the petitioners have failed to plead in their plaint that they are in possession of the property. It is also submitted that from bare reading of the plaint it is clear that the petitioners have not claimed joint possession in the property in question, which means that indirectly they have admitted that they have been excluded from the property.
In support of the above contentions, learned counsel for the respondents has placed reliance on decisions of Himachal Pradesh High Court as well as of Kerala High Court respectively in Hushan Kaushal and Ors. vs. Bal Raj and Ors., reported in AIR 2002 Himachal Pradesh 94 and in Kanjiroli Abdul Razack vs. Velikkal Anjaneyan and Ors., reported in AIR 2003 Kerala 4.
Heard learned counsel for the parties and perused the material available on record.
The Hon'ble Supreme Court in the case of Neelavathi & Ors. (supra) while taking into consideration the provisions of Section 37 of the Act of 1961, which is para material to Section 35 of the Act of 1961, has observed as under :-
"The general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the (Downloaded on 17/08/2022 at 08:38:17 PM) (6 of 7) [CW-9744/2022] property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court fee under Sec. 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been "excluded" from joint possession to which they are entitled to in law. The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiff had been excluded from possession."
[Emphasis supplied] From perusal of the averments raised by the petitioner-plaintiffs in their plaint, it is clear that though they have claimed to be in joint ownership of the property in question but have not made a specific and categorical averment claiming to be in joint possession of the property in question, however, at the same time they have also not averred in the plaint that they have been excluded from the possession of the property in question.
In such circumstances, it cannot be presumed that there is an admission on the part of the petitioner-plaintiffs that they have been excluded from the possession of the property in question.
In view of the above, I am of the opinion that the observations made by the trial court to the effect that the plaint filed by the petitioner-plaintiffs falls under Section 35(i) of the Act of 1961 cannot be sustained, however, at the same time, it is to (Downloaded on 17/08/2022 at 08:38:17 PM) (7 of 7) [CW-9744/2022] be noticed that the petitioner-plaintiffs have prayed for relief of permanent injunction against the respondent Nos.1 and 3 in respect of the property in question to the effect that they should be restrained from alienating the same in favour of the others and not to change the nature of the property in question. The observation made by the trial court to the effect that the petitioner-plaintiffs have not made proper valuation about the permanent injunction sought by them is not liable to be interfered with.
Hence, in view of the above, this writ petition is partly allowed. The finding of the trial court in the impugned order to the effect that the suit filed by the petitioner-plaintiffs falls under Section 35 of the Act of 1961 is set aside, however, other findings of the trial court in the impugned order are affirmed.
(VIJAY BISHNOI),J masif/-PS Abhishek Kumar (Downloaded on 17/08/2022 at 08:38:17 PM) Powered by TCPDF (www.tcpdf.org)