Himachal Pradesh High Court
Unknown vs Roshan Lal Sood on 23 July, 2024
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Civil Suit No. 140 of 2022 a/w
Civil Suit No. 28 of 2024
.
Reserved on 27.06.2024
CS No. 140 of 2022
23.07.2024 Present: Mr. Ajay Kumar, Senior Advocate, with
M/s Sumit Sood and Rohit, Advocates, for
the plaintiffs No. 1 2 and 4.
Mr. Deepak Bhasin, Senior Advocate, with
Ms. Geeta Devi, Advocate, for plaintiff No.3.
r to
Mr. K.D. Sood, Senior Advocate, with M/s
Het Ram Thakur and Vivek Thakur,
Advocates, for defendant No.1.
M/s Suneet Goel and Vishwas Kaushal,
Advocates, for defendants No. 2 to 7.
Defendant No.8 proceeded against ex-parte.
CS No. 28 of 2024
Mr. Ajay Kumar, Senior Advocate, with M/s
Sumit Sood and Rohit, Advocates, for the
plaintiffs.
Mr. K.D. Sood, Senior Advocate, with
M/s Vaibhav Singh Chauhan, Het Ram
Thakur and Vivek Thakur, Advocates, for
defendant No.1.
Mr. Vivek Sharma, Advocate, for defendant
No.2.
Mr. Arvind Sharma, Advocate, for defendant
No.3.
M/s Suneet Goel and Vishwas Kaushal,
Advocates, for defendants No.4 and 5.
The plaintiffs have filed a suit seeking a
decree for partition of the suit land by metes and
bounds and separate possession of the suit properties.
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They asserted in para 15 of the plaint that the value of
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the suit for jurisdiction with respect to relief of
partition of the suit property is fixed at ₹3 Crores being
the market value of the share of the plaintiffs in the
same and Court fee of ₹100/- was affixed on the plaint
qua the relief of partition as the plaintiffs are in joint,
legal and physical possession of the suit property.
2. The parties were heard on the question of
valuation.
3. Mr Ajay Kumar Sood learned Senior Advocate
assisted by Mr Sumit Sood and Mr. Rohit Advocates, for
plaintiffs No. 1, 2 and 4 in Civil Suit No. 140 of 2022
submitted that plaintiffs are in joint possession of the
suit land. The suit is governed by Schedule-II Article 13
(vi) of the H.P. Court Fee. The plaintiffs can value the
suit at a sum considered appropriate by him based on
the market value but the fixed Court fee is required to
be paid irrespective of the valuation. The suit is
properly valued and no additional Court fee is required
to be paid on the same. He relied upon the judgments
in Sanjeev Aggarwal &Anr Vs. Roshan Lal Sood, &anr.
2004(2) HLJ 1115, Suresh Chandra Dutta &ors. vs Mohan
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Bashi Dutta and another, AIR 1970 Tripura 51, Sardar
.
Fauja Singh Vs. Kuldip Singh &Ors. AIR 1978 Delhi
276,and Prakash Wati vs. Dayawanti and another, AIR
1991 Delhi 48 in support of his submission.
4. Mr Deepak Bhasin, learned Senior Advocate
assisted by Ms Geeta Devi for plaintiff No.3 and M/s
Suneet Goel and Vishwas Kaushal, Advocates for
defendants No. 2 to 7 adopted the submission of
learned Senior counsel for plaintiffs No. 1, 2 and 4.
5. Mr. K.D. Sood learned Senior Advocate
assisted by M/s Het Ram Thakur and Vivek Thakur,
learned counsel for defendant No. 1 submitted that the
suit is required to be valued under Section 7(iv)(b) of
the H.P.Court Fees Act, The Court fee is to be
determined on the suit as it has been framed and not as
it ought to be framed. He relied upon the judgment of
the Hon'ble Supreme Court in Kamaleshwar Kishore
Singh v. Paras Nath Singh, (2002) 1 SCC 304 in support of
his submission. He further submitted that plaintiffs
cannot value the suit arbitrarily and fix any Court fee
thereon. He relied upon the judgment of the Hon'ble
Supreme Court in Meenakshisundaram Chettiar v.
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Venkatachalam Chettiar, (1980) 1 SCC 616. He further
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submitted that in a suit relating to the property and ad
valorem Court fee has to be paid under Section 7(iv)(b)
of the H.P.Court Fee Act. He relied upon the judgment
of this Court in Smt. Bhagwanti Devi & another vs. Shri
Devi Ram 1992 (2) Shim. LC 33.
6. I have given considerable thought to the
submissions at the bar and have gone through the
records carefully.
7. It was laid down by the Hon'ble Supreme
Court inKamaleshwar Kishore Singh (supra), that the
Court fee has to be paid on the plaint as framed and not
on the plaint as it ought to have been framed. It was
observed:
"8. It is well settled that the court fee has to be
paid on the plaint as framed and not on the plaint
as it ought to have been framed unless by
astuteness employed in drafting the plaint the
plaintiff has attempted at evading payment of
the court fee or unless there be a provision of law
requiring the plaintiff to value the suit and pay
the court fee in a manner other than the one
adopted by the plaintiff. The court shall begin
with an assumption, for the purpose of
determining the court fees payable on plaint,
that the averments made therein by the plaintiff
are correct. Yet, an arbitrary valuation of the suit
property having no basis at all for such valuation
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and made so as to evade payment of court fees
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and fixed for the purpose of conferring
jurisdiction on some court which it does not
have, or depriving the court of jurisdiction which
it would otherwise have, can also be interfered
with by the court. It is the substance of the relief
sought for and not the form which will be
determinative of the valuation and payment of
court fees. The defence taken in the written
statement may not be relevant for the purpose of
deciding the payment of the court fee by the
plaintiff. If the plaintiff is ultimately found to
have omitted to seek an essential relief which he
r ought to have prayed for, and without which the
relief sought for in the plaint as framed and filed
cannot be allowed to him, the plaintiff shall have
to suffer the dismissal of the suit. These
principles of law were overlooked by the trial
court in passing the impugned order which was
put in issue before the High Court. We are further
of the opinion that though the revision preferred
by the plaintiff was directed against the order
dated 1-3-1997, the real question arising before
the High Court was to find out whether the suit
was properly valued and proper court fee was
paid thereon in accordance with law. While doing
so if the High Court was required to examine the
correctness or otherwise of the order dated 17-
12-1996 it should not have felt inhibited from
doing so. In the facts of the present case, we are
clearly of the opinion that the High Court was not
justified in dismissing the revision on the ground
that the order dated 1-3-1997 was an order
correcting a clerical or typing error only."
8. Therefore, the Court has to look into the
plaint as framed to determine the Court fees payable on
the same.
9. It was asserted in para 1 of the plaint that the
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suit property was earlier owned by late Lala Amar
.
Chand Sud, who was Karta of the Hindu Undivided
Family. Plaintiffs and defendants No. 1 to 7 are his legal
heirs. Para 5 of the plaint reads that defendants No. 2
to 5 are in possession of a portion of five five-storyed
building known as Amar Niwas, Sabzi Mandi, Shimla,
H.P. Para 6 of the plaint reads that building No. 34, The
Mall, Shimla/54, Middle Bazar, Shimla is jointly owned
by the plaintiff and defendants No.1 to 7 and has been
let out to defendant No.8. Para 9 of the plaint reads that
defendant No. 1 cannot usurp the joint property and is
liable to render the account. Para 15 of the plaint states
that the suit property is in joint legal and physical
possession of the plaintiffs.
10. Thus, the plaintiffs have categorically stated
that they are the joint owners in possession of the suit
property. They filed the suit for seeking partition. It
was laid down by the Full Bench of Bombay High Court
in Shanka rMaruti Girme v. Bhagwant Gunaji Girme and
others, AIR 1947 Bombay 259, that a suit for partition of
joint family property is not a suit for possession of the
immovable property but a suit to alter the joint
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possession into the separate possession. Hence, it is
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not to be valued under Section 7(v) of the Court Fee Act,
1870 but under Schedule-II, Article 17(vi) of the Courts
Fee Act 1870 (Corresponding to Article 13(vi) of H.P.
Court Fee Act, 1969) as it is incapable of valuation. It
was observed:
"3. As to whether a suit for partition of joint
family property can properly be said to be a suit
for possession of property, a suit for possession of
immovable property is usually termed a suit in
ejectment, and its ordinary significance is that the
plaintiff is out of possession, that the defendant is
wrongfully in possession, and that the plaintiff
seeks that possession should be taken from the
defendant and be given to him. But a partition
suit, where the plaintiff under accepted principles
of Hindu law is in constructive joint possession of
the whole property, is certainly not a suit in
ejectment in the ordinary sense of the term. The
plaintiff in constructive possession of the whole
seeks that the mode of enjoyment of the property
by himself and by other members of his family
shall be changed, and that, instead of enjoying
joint possession of the whole, his possession shall
be altered to separate possession of a part. An
extreme and no doubt unusual but by no means
impossible example of a partition suit is one by a
manager in physical possession of the whole of
the joint family property who nevertheless may
seek the assistance of the Court for partition and
for his separate possession of only a fraction of
the property. All the High Courts other than
Bombay, on the above line of reasoning, have
accepted that a suit for partition of joint family
property, when the plaintiff is in constructive
possession, is not a suit for the possession of
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property within the meaning of para, (v) of
.
Section 7 of the Court-fees Act, and this reasoning
may also be applied to cases where the joint family
property is entirely moveable property.
4. The first case of the Bombay High Court, 1893
P.J. 132, is based upon a decision of the Calcutta
High Court, 8 Cal. 7578. The judgment merely
affirms that in agreement with that decision, the
court fee must be ad valorem on the value of the
share claimed by the plaintiffs. The case in 8 Cal.
7578 was on a reference under Section 5 of the
Court-fees Act, by the Taxing Master of the High
Court, and the decision there, strangely enough,
was directly the reverse of the decision in 1893 P.J.
132. The suggestion before the Taxing Master
appears, to have been that the suit was one falling
under cl. (b) of para, (iv) of S. 7, which provides
for suits to enforce the right to share in any
property on the ground that it is joint family
property. Garth, C.J. upheld the opinion of the
Taxing Master that the suit did not fall under cl.
(v) of para, (iv) of S. 7, because the suit was not
brought to "enforce the right to share in any
property on the ground that it was joint family
property," but the plaintiff was in actual
possession of his share in the joint estate and
merely sought for the partition of the estate, the
separation of his share, and for khaspossession of
such share when separated. The Taxing Master's
opinion that a court fee of ten rupees, presumably
under Art. (vi) of cl. 17 of Sch. II, Court-fees Act,
therefore, was correct. The material part of the
learned Chief Justice's judgment is as follows (p.
758):
"If the plaintiff's suit had been to recover
possession of, or establish his title to, the
share which he claims in the property, he
must have paid an ad valorem stamp fee
upon the value of that share. But, as I
understand, he is already in possession of
his share, and all that he wants is, to obtain
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a partition, which is merely, as explained by
.
the learned Judges in 4 C.L.R. 4179 at p. 418
to 'change the form of his enjoyment' of the
property, or, in other words, to obtain a
divided, instead of an undivided, share.It
seems to me impossible to say what will be
the value to the plaintiff of this change in
the nature of his property, and I, therefore,
think a stamp fee of ₹ 10 is sufficient."
5. The judgment suggests perhaps that the
plaintiff in that case was in physical possession of
precisely the share he claimed to obtain by
partition, and under the Dayabhaga law a
coparcener has a defined share of coparcenary
property, although his physical occupation of that
share must be by consent of other coparceners. It
is not easy to understand what the learned Chief
Justice meant when he contemplated that, if the
suit had been to establish the plaintiff's title to the
share which he claimed in the property, he 'must
have paid an ad valorem stamp-fee upon the value
of that share,' for such suit would seem to fall
either under S. 7(iv)(d) or under Sch. II, Art. 17(iii)
as a suit for declaration. In 59 Cal. 31510, Rankin,
C.J. stated (p. 318):
"A person is not entitled to a partition
unless and until he is in possession of his
share. But, if he is out of possession of his
share, the Court does not require him to
bring two suits. He can bring a suit in which
he may claim to recover possession of his
share and he may also claim to have that
share partitioned by the same decree. If it
appears that he is out of possession
according to his own showing, then he has
to bring a suit to get possession of his
share; and it is perfectly true that, in that
case, he would have to pay a court fee on the
market value of that share. It is not a
question of declaration or declaration with
consequential relief. He would have to pay
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court fees as in a suit for possession. That I
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take to be the meaning of what was said by
Garth, C.J. in 8 Cal 7578."
6. The dictum of Garth, C.J. seems to have
influenced the decision in 18 Bom. 2093 where
Candy, J. emphasized it saying (p. 211):
"Even had the plaintiffs in the present case
simply sued to establish their title to the
share which they claim in the property, they
would still have had to pay an ad
valorem stamp fee upon the value of that
share."
7. Candy, J. then went on to hold that, as the
plaintiffs claimed partition and possession of a
definite share in certain lands and houses, which
could be valued, ad valorem court fee was leviable
on the principle laid down in 1893 P.J. 132. In 33
Bom. 6584 reference was not made either to 1893
p., J. 133 or to 18 Bom. 2093. It appears that,
between the time of the decision in 18 Bom.
2093 and the year 1909, when 33 Bom. 6584 came
up, opinion had been expressed in one case, 22
Bom. 31511, that a partition suit falls within S.
7(iv)(b), Court-fees Act. The point in 22 Bom.
31511 was not really one of court fees but of
jurisdiction. Batchelor, J. dealt with 22 Bom.
31511 in 33 Bom. 6584 and held that the suit
contemplated by S. 7(iv)(b) was one to enforce the
right to "share" in property, and not the right to
"a share" in property, and expressed the opinion
that a suit falling under cl. (b) is one for the
enforcement of what one might call an abstract
claim or right, which conclusion, as he pointed
out, brings cl. (b) into the proper logical
neighbourhood with the other clauses of para. (iv).
Having rejected the only argument which appears
to have been addressed, namely, that the decision
in 22 Bom. 31511 should be followed, Batchelor, J.
seems to have concluded that the suit then must necessarily fall under para, (v) of S. 7 as being a ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 11 suit for the possession of the land. Of course, as cl.
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(vi) of Art. 17 of sch, II is a residuary clause, if the suit can properly be brought under any of the sections of the Act, the question of this clause does not arise, but it may at least be said that the existence of a residuary clause was not at all considered in 33 Bom. 6584. The Calcutta High Court, in a series of decisions ending with 59 Cal. 31510 already referred to, but also apparently based on 8 Cal. 7578, has held that Art. 17, cl. (vi), Sch. II applies to a suit such as the present. It is a matter for some surprise that one decision, namely, that in 8 Cal. 7578, appears to be the foundation stone of the two opposing views taken by the Calcutta and the Bombay High Courts, for the difference between the Dayabhaga and Mitakshara schools in that under the former the share of a coparcener is defined while under the latter it is not, does not appear to be substantial, if any, ground for general distinction. In Bengal, the Legislature in the year 1935, by amendment of the Court-fees Act, accepted and adopted the view which the Calcutta High Court had always taken. By Bengal, Act 7[VII] of 1935, among Other amendments to Section 7 of the Court-fees Act, was added a cl. (vi)(A) which provides that in suits for partition and separate possession of a share of joint family property, or of joint property, or to enforce a right to "a share"
in any property on the ground that it is joint family property or joint property if the plaintiff has been excluded from possession of the property in which he claims to be a coparcener or co- owner, the court-fee is to be according to the market value of the share in respect of which the suit was instituted. Also to Art. 17 of Sch. II of the Act, after the entry (v) was added an entry (v)-A, whereby a fee of as. 15 is prescribed as the court fee in suits for partition and separate possession of a share of joint family property or joint property or to enforce a right to a share in any property on the ground that it is joint family ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 12 property or joint property if the plaintiff is in .
possession of the property in which to claims to be a coparcener or co-owner. The decisions of the other High Courts on the point are set out at length in the latest Madras Full Bench ruling, and no possible distinction can be made to these cases on grounds of differences in the Mitakshara and Dayabhaga schools of law. It appears that, before this latest decision, the Madras High Court had held in accordance with the one Bombay decision, 22 Bom. 31511, that suits such as the present fell within S. 7(iv) (b) ofthe Court-fees Act. The view expressed by Batchelor, J. in 33 Bom. 6594 as to the inapplicability of cl. (b) of para, (iv) of S. 7 was approved by the Full Bench, but the Bombay view that partition suits fall under S. 7, para, (v), was emphatically dissented from. As I have already stated, the basis of all the decisions of the other High Courts is that a suit for partition is not a suit for possession when a plaintiff in constructive possession seeks to have the mode of his possession changed, and it is held that para, (v) of S. 7 must be restricted to the suits which of their essential nature are suits for possession. It is also held by those High Courts that the second condition of Art. 17(vi) of Sch. II or cl. VII as it is by the recent Bombay amendment of sch. II that it is not possible to estimate at a money value the subject matter in dispute, is also satisfied; for the value of a change in the mode of possession is not capable of being expressed in money. I think that these decisions are right, and it does appear that the Bombay view, although it has stood for so many years is based on three decisions, two of which rest upon a Calcutta decision, which appears itself to suggest the opposite result, and a third which appears to have been given without taking into consideration Art. 17 of Sch. II, and where it seems to have been assumed that if suits of this nature do not fall under cl. (b) of para, (iv) of Section 7 of the Court-fees Act, they must ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 13 necessarily fall under para, (v) of that section. In .
these circumstances, in view of the weight of authority, I think that it should now be declared that the Bombay decisions are not good law and that this Court should fall into line with all other High Courts, and should hold that, where in a suit for partition the plaintiff claims to be in constructive possession with the other coparceners of the joint property, the suit falls under Sch. II, Art. 17, clause (vii) (according to the Bombay amendment) and the court fee payable is the fixed fee, which under the present Act is ₹ 15.
11. This High Court also considered this question in Mina Ram v. Amolak Ram, 1965 SCC OnLine HP 14 :
AIR 1966 HP 4and held that the Court Fee is to be determined on the allegations made in the plaint. If the property is in joint possession of the co-shares, he has to pay Court fee as per Schedule II, Article 13(vi) but if he is out of possession The Court fee has to be paid under Section 7(iv) (b). It was observed: -
"14. The question of Court-fees, in Himachal Pradesh, is to be determined, in the light of averments, made in the plaint, uninfluenced by the pleas in the written statement. This is not to say that a defendant is debarred from placing material, before the Court, which might lead it to think that the proper Court fee has not been paid.
But the plea of a defendant, that the plaintiff has no title to the property or is not in its possession cannot be taken into consideration, while determining the question of court fees, in a partition suit. If the Court finds, on a plea being raised by the defendant, that the allegation of the plaintiff that he is in possession of the property is ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 14 untrue, then the suit will be dismissed solely on .
the ground that the plaintiff being out of possession is not entitled to sue for partition without asking for possession unless for special reasons the Court deems it proper to allow an amendment of the plaint, vide AIR 1984 Lah 563 supra. But the question of Court fees is to be decided in a partition suit, on the allegations, made in the plaint, alone.
15. The averments, made in the plaint, in the present case, have been set forth, in brief, in an earlier part of this order. The sum and substance of the averments are that the property in the suit is joint family property of the petitioner and respondent No. 1 and the petitioner was actually and constructively in possession of the property. The petitioner sought partition of the houses. According to the allegations of the petitioner, he is already in enjoyment of a part of the property and merely seeks to change the mode of enjoyment of the joint property. The relief, in such a case, is not capable of being valued in money and Article 17(vi), Schedule H of the Court-Fees Act applies. The Court payable, on the relief of partition, on the allegations, made, in the plaint, by the petitioner, were fixed Court fees of ₹ 15, under Article 17(vi). Schedule II.
16. The learned counsel for respondent No. 1invited the attention of the Court to paragraph 11 of the plaint wherein it is stated that respondent No. 1 had refused to render accounts after 1960 and to paragraph 12 wherein it is stated that respondent No. 1 had denied the right of the petitioner and contended that the clear inference from the aforesaid statements was that the petitioner admitted in the plaint that he had been ousted from the enjoyment of the joint property, and that, therefore, either section 7(iv)(b) or section 7(v) and not Article 17(vi), Schedule II, of the Court fees Act, was applicable to the relief partition the contention of the learned counsel ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 15 does not appear to be correct. A reading of the .
plaint, as a whole, shows that the allegations of the petitioner were that he had been occasionally visiting the property in suit which was being managed by respondent No. 1, on behalf of and for the benefit of the joint Hindu family, that he had been receiving profits of the orchard and that it had become difficult to enjoy the property jointly. The petitioner did not state in the plaint that he had been ousted from possession of the property. The refusal to render accounts and denial of title, by respondent No. 1, had furnished cause of action to the petitioner, for the suit. Those facts were stated, in the plaint, in that context. The allegations, in the plaint, read as a whole, amounted to an averment that the petitioner was in actual possession of some property and in constructive possession of the other. Therefore, the relief of partition, claimed by the petitioner, did not fall within the ambit of either section 7(iv)(b) or section 7(v) of the Court Fees Act but fell within the four corners of Article 17(vi). Schedule II.
17. There is authority for the proposition that Article 17(vi). Schedule II applies to a suit, brought for partition of joint family property, by a member, who alleges that he is in possession, actual or constructive, of the property. Reference may be made to AIR 1934 Lah 563 supra. The facts, in that case, were similar to the facts in the present case. The plaintiffs had brought a suit for separate possession of one-half share, by partition, alleging that the properties belonged to a joint Hindu family of which the plaintiffs and the defendants were members and that the plaintiffs were in possession of some of the properties the plaint was stamped with Court fees of ₹ 10/- only under Article 17(vi), Schedule II of the Court fees Act, though the market value of the half share was one lac. The defendants denied that the plaintiffs were members of the joint Hindu family had a ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 16 share in the properties in suit or were in .
possession of any of the properties. The defendants raised an objection that proper Court fees had not been paid, on the plaint. The Full Bench held that the Court-fee, on the suit, was payable under Article 17(vi), Schedule II and not under Section 7(iv)(b) of the Court Fees Act Similarly, it was held in, AIR 1947 Bom 259 (FB) supra, that a suit for partition of joint family property, when the plaintiff was alleged to be in constructive possession, is not a suit for possession of the property within the meaning of section 7(v) Court fees Act, but fen under Article 17(vi), Schedule II. In C.R. Ramaswami Ayyangar v. C.S. Ranga-chariar, AIR 1940 Mad 113 (FB), it was laid down that neither section 7(iv)(b) nor section 7(v) of the Court Fees Act applied to a suit for partition of joint family property by a member who was in joint possession and that Article 17(vi), Schedule II was applicable to such a suit. The Madras Full Bench overruled the decision of a previous Full Bench which had held that a suit for partition of joint family property was governed by section 7(iv)(b) of the Court Fees Act.
18. It follows from the above discussion that the petitioner was liable to pay fixed Court fees of ₹ 15/-, with respect to the declaratory relief that the lands, including the orchard, were joint property and were liable to be partitioned and fixed Court fees of ₹ 15/-, with respect to the relief of separate possession of one-half share of houses, by partition. The payment of additional Court fees on the amount of ₹ 4100.00, the market value of one- half share in certain houses, was unnecessary. The petitioner had paid much more Court fees on the reliefs, claimed, than he was liable to pay under the Court Fees Act, The refusal of the learned Senior Subordinate Judge to accept the plaint of the petitioner, which was not only properly stamped but was stamped with more Court fee than was required under law amounted to failure ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 17 to exercise jurisdiction the order of the learned .
Senior Subordinate Judge, directing the petitioner to pay additional Court fees of the value of ₹ 320060 np is illegal and liable to be set aside. The revision petition is allowed. The order of the learned Senior Subordinate Judge, directing the petitioner to pay additional Court fees of ₹ 3200.60 np is set aside. The suit is remitted to him for early disposal in accordance with the law. The costs in the revision-petition will abide by the result of the suit."
12. Tripura High Court also held in Suresh Chandra Dutta (supra) that a suit for partition filed by a co-owner in joint possession falls under Article 17(iv) of Schedule II of the Court Fee Act and not under Section 7(iv) of the Act. It was observed:-
"5. After examining the arguments addressed at the bar and going through the authorities cited by the parties' counsel, I feel that the trial court was in error in holding that the present suit is of the nature mentioned in S. 7 (iv) (b) of the Court Fees Act. Clause (b) of Section 7(iv) reads.
"To enforce the right to share in any property on the ground that it is joint family property".
The heading of the clause is: "To enforce a right to share in joint family property". Firstly, it is not mentioned in the plaint that the various co- owners of the land in dispute are members of a joint family. The petitioners, it was admitted during the course of the arguments, do not belong to the family of the plaintiff Mohan Bashi Dutta. In the second place, there is complete consensus of judicial opinion in India on the point that Section 7(iv)(b) applies only to those cases where the plaintiff happens to be out of possession of the ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 18 joint property and prays in the suit filed by him .
that he should be restored to possession of his share in that property. In this connection, I invite attention to the case reported in Durga Bux v. Ambika Bux, AIR 1940 Oudh 47 and this authority, I may point out, was relied upon by Shri B. B. Gupta, the learned counsel for the plaintiff-respondent No. 1, though for a different purpose. It is equally well settled that a suit for partition by a co-sharer in possession of even a part of the joint property is governed for the purposes of court-fee, by clause (vi) of Article 17 of Schedule II of the Court-Fees Act. Hence it is not possible to sustain the finding of the trial court that the present suit is governed by Section 7(iv)(b) for the purpose of court-fee. In fact, the court fee had not been paid by the plaintiff under that provision of the law. Under that provision, it is for the plaintiff to state the amount at which he values the relief sought. However, as is evident from para 11 of the plaint reproduced above, the plaintiff had not valued the suit for the purpose of court fee but had paid a fixed court fee of ₹ 15. This he appears to have done on the assumption that the case falls under Article 17(vi) of Schedule II of the Court Fees Act. On no other basis payment of a fixed court fee of ₹ 15 can be explained. The suits mentioned in Article 17 (vi), I may emphasise, have to be stamped with a court fee of the value of ₹ 15.
6. The trial court was also wrong in holding that in the present suit, it was open to the plaintiff to fix its value for the purposes of jurisdiction at his sweet will. In support of his conclusion, the court placed reliance on Section 8 of the Suits Valuation Act and the principles enunciated by the Supreme Court in the case of Sathappa Chettiar, AIR 1958 SC 245 (supra). Section 8 of the Suits Valuation Act runs as under:
"Where in suits other than those referred to ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 19 in the Court Fees Act, 1870 (7 of 1870), .
Section 7, paragraphs (v), (vi) and (ix) and paragraph (x), clause (d), court-fees are payable ad valorem under the Court Fees Act, 1870, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same".
A plain reading of the section indicates that it relates to those cases where the court fees are payable ad valorem under the Court Fees Act. However, since in the present suit, a fixed court fee of ₹ 15 had been paid under Art. 17 (vi), Schedule II, of the Court Fees Act, it cannot be said that the court fee had been paid on an ad valorem basis. Therefore, the applicability of Section 8 of the Suits Valuation Act is not attracted. I have gone through the Supreme Court report in the case of Sathappa Chettiar but have found no support therefrom for the view of the trial court that the present suit falls under Section 7(iv)(b) of the Court Fees Act or that it is governed by Section 8 of the Suits Valuation Act for purposes of jurisdiction. The only relevant propositions enunciated by the Supreme Court were that in respect of suits falling under section 7 (iv) of the Court Fees Act, a departure has been made by giving liberty to the plaintiff to value his claim for the purposes of court-fees, and that the effect of section 8 of the Suits Valuation Act is to make the value for the purposes of jurisdiction depend upon the value as determined for computation of court- fees in respect of suits mentioned therein. Since the basic approach of the trial court, namely, that the present suit falls under section 7 (iv) (b) of the Court Fees Act, is wrong, and since section 8 of the Suits Valuation Act in terms covers those cases where court fee is payable on ad valorem basis, the Supreme Court case is clearly distinguishable.
7. Before proceeding to determine whether the suit has been properly valued for the purposes of jurisdiction, I would like to dispose of one point ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 20 which was persistently pressed by Shri B. B. Gupta.
.
Respecting suits mentioned in the first four clauses of section 7 of the Assam Court Fees Act as extended to Tripura, is mentioned. "In all such suits, the plaintiff shall state the amount at which he values the relief sought". Shri Gupta urged that these reproduced words give unfettered authority to the plaintiff to fix the value of the suit for the purposes of jurisdiction. I regret my inability to accept that contention. The reproduced words, in my opinion, give discretion to the plaintiff to fix the value of the suit for the purposes of court-fee and not jurisdiction. The value of the suit for the purposes of jurisdiction has to be determined with reference to the Suits Valuation Act. In substance,Shri Gupta argued that the fixed court fee of ₹ 15/- could be paid under Article 17 (vi), Schedule II, of the Court Fees Act, while the value for the purposes of jurisdiction could be assessed by the plaintiff at his pleasure in terms of the reproduced words occurring beneath the first four clauses of section 7 of the Court Fees Act. That would amount to putting out of consideration altogether the provisions of the Suits Valuation Act while fixing the value of the suit for the purposes of jurisdiction, Nay, more. It would also mean that one provision of the Court Fees Act can be utilised for the purposes of court fees and another for determining the value of the suit for the purposes of jurisdiction. The proposition canvassed by Shri Gupta, to say the least, is fantastic and not supported by any authority. A plain reading of the Supreme Court authority, in the case of Sathappa, would bring out that respecting suits falling under section 7 (iv) of the Court Fees Act, the plaintiff has to fix the value of the suit for the purposes of court fee, and that value is also to be considered as the value of the suit for the purposes of jurisdiction in terms of section 8 of the Suits Valuation Act. However, nothing said in section 7 of the Court Fees Act can ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 21 be interpreted to support the proposition that the .
value of a suit for the purposes of jurisdiction is to be determined under that provision of law completely divorced from the provisions of the Suits Valuation Act. Hence, the proposition canvassed by Shri B. B. Gupta has to be negatived.
13. This Court held in Geeta Devi vs. Devinder Nath Bhardwaj & others 2003 (1) Shim. LC 309 that a partition suit where the plaintiff claimed to be in joint possession of the property is to be valued under Article 13(vi) of the Second Schedule of the Court Fee Act where the co-sharer is out of the possession, the suit will be governed by Section 7(iv) (b) of the Court Fee Act. It was observed:-
"6. A partition suit may be based on one of the two eventualities i.e. (i) wherein the plaintiff claims to be in joint possession of the property or (ii) where he is not in enjoyment and possession of the joint property sought to be partitioned and desires to separate his share in such property from the other co-sharers. In the former case the suit would fall under Article 13 (vi) of the Second Schedule of the H.P. Court Fees Act (hereafter referred to as 'the Act') and a fixed Court fee will be payable. However, in the latter case, the suit will be governed by Section 7 (iv) (b) of the Act.
7. It may be mentioned here that at the time of the hearing, a few judgments of different High Courts for and against the law point involved herein were cited by the learned counsel for the parties. However, they need not be referred to here because the law point involved has already been decided by this Court and such decisions still hold ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 22 good and fortifies the view hereinabove taken.
.
8. In Hushan Kaushal & others v. Bal Raj and others, 2001 (2) Shim. L.C. 223, a learned Single Judge of this Court while dealing with a similar question held as under:
"18. Following the ratio laid down by the Full Bench of the Lahore High Court in Asa Ram and others v. Jaggan Nath and others, AIR; 1934 Lahore 563, it was held that in a suit for partition of joint property, where the plaintiff alleges joint possession, the suit would fall under Article 17(vi) of Second r Schedule of Court Fees Act, 1870 and a fixed court fee is payable. Section 7(iv)(b) would not apply to such a suit. If, however, the plaintiff has been excluded from joint enjoyment or where he has never been in enjoyment or possession, actual or constructive, of the joint property and desires to separate his share from the other co-sharers, he must sue for possession and partition and in such a case he must pay ad valorem court fee on his share under Section 7(iv)(b) of the Court Fees Act,1870.
19. To the similar effect has been by the Full Bench of Bombay High Court in Shankar Maruti Girme v. Bhagwant Gunaji Girme and others, AIR 1947 Bombay 259, and by the Full Bench of Madras High Court in C.R. Ramaswami Ayyanger (Minor) v. C.S. Rangachariar and others, AIR 1940 Madras 113, and by the Delhi High Court in Smt. Parkash Wativ. Smt. Dayawantiand another, AIR 1991 Delhi 48.
20. The position, therefore, is that in a suit to enforce the right to share a joint family property, that is, a suit to be restored to joint possession or enjoyment or separate possession and enjoyment by partition of a joint family property, when the plaintiff is not in possession of such property, whether actual or constructive, court fee would be payable under Section 7(iv)(b), ad valorem on the ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 23 value of the relief as fixed and in a suit for .
partition of joint property, whether owned by a joint family or otherwise. Where the plaintiff claims that he is in actual or constructive possession thereof fixed court fee would be payable under Article 17(vi) of the Second Schedule of the Court Fees Act, 1870, corresponding to Article 13 (iv) of the Second Schedule of the H.P. Court Fees Act, 1968."
9. In the case in hand, as already stated, the plaintiff has not claimed to be in possession of the suit property but his case is that it is in possession of defendants No.1 and 2 and, as already seen hereinabove, the defendants in their written statement have not disputed these averments in the plaint and have averred that the plaintiff is out of possession of the suit property. Therefore, in view of the above position in law, the value of the suit for the purposes of Court fee will be governed by Section 7 (iv) (b) of the Act.
10. The relevant part of Section 7 of the Act reads as under:
"7. Computation of fees payable in certain suits.- The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:-
(i) xxx xxxxxx
(ii) xxx xxxxxx
(iii) xxx xxxxxx
(iv) In suits-
(a) xxx xxxxxx
(b) to enforce a right to share in joint family property to enforce the right to share in any property on the ground that it is joint family property;
(c) xxx xxxxxx ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 24 (d) xxx xxxxxx . (e) xxx xxxxxx (f) xxx xxxxxx
according to the amount at which the relief sought is valued in the plaint or memorandum of appeal;
In all such suits, the plaintiff shall state the amount at which values the relief sought."
11. For the purpose of Court fee, the plaintiff has valued his share at ₹ 5,20,000/- and such valuation is evidently in accordance with the aforesaid provisions.
12. Section 8 of the Suits Valuation Act, 1887 provides as under:
"8. Court-fee value and jurisdictional value to be the same in certain suits.-Where in suits other than those referred to in the Court-fees Act, 1870, Section 7, paragraphs v, vi and ix, and paragraph x, clause (d) Court fees are payable ad valorem under the Court Fees Act, 1870, the value as determinate for the computation of Court-
fees and the value for the purposes of jurisdiction shall be the same."
13. It is evident on a bare reading of the aforesaid provisions that the valuation of a suit which is governed by the various paragraphs under Section 7 except paragraphs v, vi, ix and x for the purpose of jurisdiction shall be the same as for the purpose of Court fee. Therefore, the valuation of this suit which falls under paragraph (iv) of Section 7 of the Act for the purpose of the Court fee the value for the purpose of the jurisdiction will also be ₹ 5,20,000/- which is the value for the purpose of the Court fee. The plaintiff, however, has valued the suit for the purpose of jurisdiction at ₹ 31 lacs, which valuation is not in accordance with the provisions of Section 8 (supra). Hence, the suit has wrongly been valued for the purpose of jurisdiction because it ought to have been valued ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 25 at ₹5,20,000/- for the purpose of jurisdiction .
also."
14. A similar view was taken in Hushan Kaushal v.
Bal Raj, 2001 SCC OnLine HP 6: AIR 2002 HP 94,wherein it was observed:
"9. The Hon'ble Supreme Court in Abdul Hamid Shamsi v. Abdul Majid, (1988) 2 SCC 575 : (AIR 1988 SC 1150), while upholding the right of the plaintiff to value the suit according to his own estimate, has held that the plaintiff has not been given absolute right or option to place any valuation whatever. It was further held that in case of limited pecuniary jurisdiction, the defendant could object to the valuation put forth by the plaintiff, as arbitrary undervaluation could result in the rejection of the plaint.
10. Dealing with the question of valuation of suit for accounting or dissolution of partnership and accounting filed in the Courts of limited pecuniary jurisdiction, the Hon'ble Supreme Court in Sujir Keshav Nayak v. Sujir Ganesh Nayak, (1992) 1 SCC 731 : (AIR 1992 SC 1526 at p. 1529) has held:
"...................It can thus be resolved that in suits for accounting or for dissolution of partnership and accounting filed in Courts of limited pecuniary jurisdiction the plaintiff must take every care to disclose valuation which is not arbitrary as the plaint is liable to be rejected on the objection of the defendant. But in suits of such nature filed before Courts of unlimited jurisdiction, the valuation disclosed by the plaintiff may be accepted as correct. This, however, does not mean that the Court's power to examine the correctness of valuation is taken away. If on perusal of plaint the Court is prima facie satisfied that ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 26 the plaintiff has not been fair and valued .
the suit or relief arbitrarily it is not precluded from directing the plaintiff to value it properly and pay court-fee on it."
The Hon'ble Supreme Court laid down the law as under (at p. 1528 of AIR):
"(1) Where the question of court fee is linked with jurisdiction a defendant has a right to raise an objection and the Court should decide it as a preliminary issue. (2) But in those cases where the suit is filed in a Court of unlimited jurisdiction the r valuation disclosed by the plaintiff or payment of the amount of court fee on relief claimed in plaint or memorandum of appeal should be taken as correct.
(3) This does not preclude the Court even in suits filed in Courts of unlimited jurisdiction from examining if the valuation, on averments in plaint is arbitrary."
11. The dispute in the present case pertains to the valuation of the suit insofar as the relief of partition of immovable properties by enforcement of a right to share in the joint family property is concerned. The short question, therefore, which calls for a decision in the present revision petition is whether fixed court fees under Art. 13(iv) of the Second Schedule of H.P. Court-fees Act, 1968 (as paid by the petitioners) or ad valorem court fee on the market value of the properties to the extent of share(s) claimed under Section 7(iv)(b) of the said Act (as directed by the learned District Judge) is payable on the plaint of the suit filed by the petitioners.
12. It is well settled that for deciding the question relating to the amount of court fee payable on the plaint, not only have the averments in the plaint alone to be taken into account but such averments ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 27 are to be assumed as correct. Decision on the court .
fee payable on a plaint can neither depend on the pleas raised in defence nor on the maintainability of the suit as framed or even upon the assumption that the Court must somehow spell out of the plaint such a claim which is ultimately capable of being decreed. These things are of no concern to the Court deciding a dispute as to the provision of the Court-fees Act, under which a plaint is taxable with fee. The Court has to take the plaint as it is without omitting anything material therefrom and without reading into it by implication what is not stated therein. (See: Neelavathi v. N. Natarajan, AIR 1980 SC 691).
16. In Mina Ram v. Amolakam, AIR 1966 Him Pra 4, the plaintiff herein filed a suit for a declaration that lands and houses, the subject matter of the suit, were joint Hindu family property of the plaintiff and defendant No. 1 and for separate possession by the partition of his half share in such lands and houses, and rendition of accounts.
The valuation of the suit as put forth by the plaintiff was objected to by the defendants. The learned trial Court came to the conclusion that the plaintiff had not properly valued the suit for purposes of court fee and had not paid the full court fee on the reliefs claimed. The trial Court directed the plaintiff to pay an additional court fee of the value of ₹ 3,200.60 paise on the plaint. The matter was carried in revision by the plaintiff. The question, which arose was -- whether the case would be governed by Art. 17(vi) of the Second Schedule of Court-fees Act, 1870 (corresponding to Art. 13(iv), Second Schedule of the H.P. Court- fees Act, 1968) or by Section 7(iv)(b) or Section 7(v) of the Court-fees Act, 1870.
17. Following the ratio laid down by the Full Bench of the Lahore High Court in Asa Ram v. Jagan Nath, AIR 1934 Lahore 563, it was held that in a suit for partition of joint property, where the plaintiff alleges joint possession, the suit would fall under ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 28 Art. 17(vi) of Second Schedule of Court-fees Act, .
1870 and a fixed court fee is payable. Section 7(iv)(b) would not apply to such a suit. If, however, the plaintiff has been excluded from joint enjoyment or where he has never been in enjoyment or possession, actual or constructive, of the joint property and desires to separate his share from the other co-sharers, he must sue for possession and partition and in such a case he must pay ad valorem court-fee on his share under Section 7(iv)(b) of the Court-fees Act, 1870.
18. To the similar effect has been by the Full Bench of Bombay High Court in Shankar Maruti Girme v. Bhagwant Gunaji Girme, AIR 1947 Bombay 259 and by the Full Bench of Madras High Court in C.R. Ramaswami Ayyanger (Minor) v. C.S. Rangachariar, AIR 1940 Madras 113, and by the Delhi High Court in Smt. Prakash Wati v. Smt. Dayawanti, AIR 1991 Delhi 48.
19. The position, therefore, is that in a suit to enforce right to share a joint family property, that is, a suit to be restored to joint possession or enjoyment or separate possession and enjoyment by partition of a joint family property, when the plaintiff is not in possession of such property, whether actual or constructive, court-fee would be payable under S. 7(iv)(b), ad valorem on the value of the relief as fixed and in a suit for partition of joint property, whether owned by a joint family or otherwise. Where the plaintiff claims that he is in actual or constructive possession thereof fixed court fee would be payable under Art. 17(vi) of the Second Schedule of the Court-fees Act, 1870, corresponding to Art. 13(iv) of the Second Schedule of the H.P. Court- fees Act, 1968.
15. This position was reiterated in Sanjeev Aggarwal (supra), wherein it was observed:
::: Downloaded on - 23/07/2024 20:33:14 :::CIS 297. In Sadhu Mahadu Jagdale v. Tatya Sadhu Jagdale .
and others (supra), a suit for partition and separate possession of share/shares in joint family property was prayed, therefore, ad valorem Court fee was ordered to be fixed in this case.
Admittedly, parties in this suit are not members of the joint family, as such there is no question of their being in possession of the joint family property.
8. In Kanwar Partap Singh v. Minakshi Devi and others (supra), it was held that shares of the parties had first to be determined and then declaration was to be given thereto. The grant ofprohibitory injunction was held to be dependent upon the aforesaid declaration of the shares of the parties. Therefore, in those circumstances, it was held that the declaration and consequential relief of injunction was to be decided in the suit as per provisions of Section 7(iv)(c) of the H.P. Court Fees Act, 1968, this provision was held applicable. Again, that is not the situation in the present case because possession by the parties is admitted and their shares are not in dispute.
9. So far decision in Co-operative Forest Societies Union of District Kangra, H.P. v. State of H.P. and others (supra) is concerned, its ratio is also not applicable to the facts of the present suit, the reason being that it was a suit for rendition of accounts. In the context of Section 8 of the Suits Valuation. Act, the plaintiff had valued the suit for purposes of court fee at ₹ 2000/-, whereas for the purposes of jurisdiction it was valued at ₹ 50, 00,000/-. Thus, this Court had held that the suit cannot be said to have been properly valued for purposes of presentation to the proper Court.
10. So far reliance on the decision of this Court in Dr. Om Parkash Rawal v. Mr Justice Amrit Lal Bahri (Supra), is concerned, again it is misconceived. The law laid down in it is wholly inapplicable to ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 30 the facts and circumstances of this case. As .
already observed parties are admittedly in possession of part of the suit property. There being no dispute regarding their shares, thus to say that the valuation of the suit has to be the same for purposes of Court Fee and jurisdiction, and ad valorem court fee would be payable is, therefore, not correct. For taking this view, reliance is being placed on a decision of this Court, in Hushan Kaushal and others v. Bal Raj and others, 2001(2) Shim.LC. 223. What was held in this judgment and is relevant for the purposes of the present case is extracted herein below:
"18. Following the ratio laid down by the Full Bench of the Lahore High Court in Asa Ram and others v. Jagan Nath and others, AIR 1934 Lahore 563, it was held that in a suit for partition of joint property, where the plaintiffs allege joint possession, the suit would fall under Article 17(vi) of Second Scheduled of Court Fees Act, 1870 and a fixed court fee is payable. Section 7(iv) (b) would not applying to such a suit, however, the plaintiff has been excluded from joint enjoyment or where he has never been in enjoyment or possession, actual or constructive, of the joint property and desires to separate his share from the other co-shares, he must sue for possession and partition and in such a case he must pay ad valorem court fee on his share under Section 7(iv)(b) of the Court Fees Act, 1870.
19. To the similar effect has been by the Full Bench of Bombay High Court in Shankar Maruti Girme v. Bhagwant Gunaji Girme and others, AIR 1947 Bombay 259, and by the Full Bench of Madras High Court in C.R. Ramaswami Ayyanger (Minor) v. G.S. Rangachariar and others, AIR 1940 Madras 113, and by the Delhi High Court in Smt. Prakash Wati v. Smt. Dayawanti and another, ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 31 AIR 1991 Delhi 48.
.
20. The position, therefore, is that in a suit for enforce the right to share a joint family property, that is, a suit to be restored to joint possession or enjoyment or separate possession and enjoyment by partition of a joint family property, when the plaintiff is not in possession of such property, whether actual or constructive, Court fee would be payable under Section 7(iv)(b), ad valorem on the value of the relief as fixed and in a suit for partition of joint property, whether owned by a joint family or otherwise. Where the plaintiff claims that he is in actual or constructive possession thereof fixed court fee wouldbe payable under Article 17(vi) of the Second Schedule of the Court Fees Act, 1870, corresponding to Article 13(iv) of the Second Schedule of the HP. Court Fees Act, 1968."
11. After taking note of this decision in Geeta Devi v. Devinder Nath Bhardwaj and others, 2003(1) Shim.L.C. 309, wherein the plaintiff was not in possession of the suit property, therefore, he cannot claim partition for separate possession without paying the Court tee, it was held as under:-
"2. The brief facts relevant for the purpose of disposal of the aforesaid issue may be noticed. The plaintiff instituted a suit for partition of the suit property comprising Khasra Nos. 2472, 2473 and 2474, Khata No. 51 min, Khatauni No. 208 min, measuring - 490.62 sq. meters, situated at Up Mohal Shiv Nagar, Hamirpur and for declaration of the share of the plaintiff in the Kisan Vikas Patra and National Saving Certificate arid for mandatory injunction to hand over the share of the plaintiff therein along with a decree for rendition of accounts. The suit ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 32 properties were earlier admittedly owned .
by the father of the plaintiff and predecessor-in-interest of the defendants. The plaintiff claims that since he has 1/6th share in the immovable property left by his deceased father which is presently in possession of defendants No. 1 and 2 and the plaintiff does not want to remain joint owner of the suit property and thus wants partition thereof and separate possession to the extent of 1/6th share in the house, courtyard and the kitchen. Hence, the suit, which, has been valued for the purpose of jurisdiction at ₹ 31 lacs i.e. the entire value of the property in suit and for the purpose of Court fee at ₹ 5,20,000/- i.e. the value of the share of the plaintiff in the suit property and the Court fee has been accordingly affixed.
3. The defendants contested the claim of the plaintiff inter alia on the ground that the suit was not properly valued for the purpose of Court fee and jurisdiction which led to the framing of aforesaid issue which was dealt with as a preliminary issue.
5. As per the plaint, the case of the plaintiff is that the property in the suit is in possession of defendants No. 1 and 2. In preliminary objection No. 7 in the written statement it has been pleaded by the defendants also that the plaintiff is not in possession of the property in the suit, therefore, he cannot claim partition for separate possession without paying the Court fee. Thus what clearly emerges from the pleadings is that the plaintiff is not in possession and enjoyment of the suit property and, therefore, has instituted the suit for partition and possession of his share in the immovable property. It is, therefore, required to be determined as to ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 33 in the given situation how the suit ought to .
have been valued for the purposes of Court Fee and jurisdiction.
6. A partition suit may be based on one of the two eventualities i.e. (i) wherein the plaintiff claims to be in joint possession of the property or (ii) where he is not in enjoyment and possession of the joint property sought to be partitioned and desires to separate his share in such property from the other co-sharers. In the former case, the suit would fall under Article 13(vi) of the Second Schedule of the HP. Court Fees Act (hereinafter referred to as 'the Act1) and a fixed Court fee will be payable. However, in the latter case, the suit will be governed by Section 7(iv)(b)of the Act."
12. The decision in Hushan Kaushal and others v. Bal Raj and others (supra) was also noted in this case and then it was further held: -
"16. It is contended by the learned Counsel for the plaintiff that even if this court comes to the conclusion that the value of the suit for the purpose of Court fee is ₹ 5,20,000/- that does not mean that this Court has no jurisdiction to try the suit as at the time of institution of the suit, a suit valued at more than ₹ 5 lacs was triable by this Court alone and that the jurisdiction of the District Judge to try suits up to the value of ₹ 10 lacs had been enhanced subsequent to the institution of the present suit. On the other hand, the learned Counsel for the defendants has contended that once it is held that the value of the suit for the purpose of jurisdiction is such that it is triable by a lower Court the suit deserves to be transferred to such Court for disposal. 17 There is no dispute that prior to the coming ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 34 into force of the Himachal Pradesh Courts .
(Amendment) Act, 2001 (hereinafter referred to as 'the Amending Act'), the State were invested with the aforesaid pecuniary jurisdiction. Thus, even according to the value of the suit for the purpose of jurisdiction, as determined hereinabove, at the time of institution it was triable only by this Court. However, by the aforesaid Amending Act, the pecuniary jurisdiction of the District Judge was enhanced to try the suits up to the value of ₹ 10 lacs. Thus, by virtue of the amended provisions a suit r valued at ₹ 10 lacs or less became triable by the concerned District Judge. In the ordinary course and by virtue of provisions of Section 15 of the Code of Civil Procedure, it would have been in the discretion of this Court to continue with the trial of this suit, however, Section 21 (a) of the Himachal Pradesh Courts Act has been added to the Act to meet the situation when any change is brought about in the pecuniary jurisdiction of the subordinate Courts in this State which provides for the transfer of the suit, appeal or any other proceeding pending in the High Court at the time of such amendment to such subordinate Civil Court in Himachal Pradesh which would have jurisdiction to try such suit, appeal or proceeding. In view of the intendment of these provisions, the present suit deserves to be transferred for disposal to the concerned District Judge."
13. Keeping in view the facts as briefly noted hereinabove regarding each one of the parties being admittedly in possession of a part of the suit property, and it being not joint family property, I am satisfied that Section 7(v)(b) as well as 7(iv)(c) of the HP. Court Fees Act, 1968 is inapplicable to the facts and circumstances of this case. What ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 35 follows from this is that the suit is properly valued .
for the purposes of court fee and jurisdiction. This view is supported by the two decisions of this court, referred to in the preceding paras of this order.
14. Another point on behalf of the defendant urged was, regarding the determination of the status of the defendant over the suit premises. With a view to call for findings on this issue, learned senior Counsel referred to the provisions of Order XX Rule 18 CPC. By referring to the provisions of Section 111 (d) of the Transfer of Property Act, he urged that there is no question of the merger so far as ownership and tenancy of his client in the demised premises is concerned. I am of the view that this question is not to be determined at this stage, and is thus left open.
16. Delhi High Court also took a similar view in Geeta Tandon v. Sunil Gomber, (2023) 5 HCC (Del) 247 and it was observed:-
45. It was held by this Court inPrakasha Wativ.Dayawanti[PrakashaWativ.Dayawanti,1990 SCC OnLine Del 213 : (1990) 42 DLT 421], that it is a settled principle of law that in the case of co-
owners, the possession of one is in law the possession of all unless ouster or exclusion is proved. By relying on the judgment in Jagdish Pershad v. Joti Pershad [Jagdish Pershad v. Joti Pershad, 1974 SCC OnLine Del 214: ILR (1975) 1 Del 841], this Court in Prakasha Wati case [Prakasha Wati v. Dayawanti, 1990 SCC OnLine Del 213 : (1990) 42 DLT 421] reiterated that, when the plaintiff asserts shared possession of the property for which partition is requested, whether actual or constructive, the plaintiff is only required to pay a fixed court charge in accordance with Article 17(vi) Schedule II of the Court Fees Act, 1870. Thus, ad volarem court fee under Section 7(iv)(b) of the ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 36 Court Fees Act, 1870 can be applied only when the .
plaintiff has been ousted from its enjoyment of the suit property and seeks restoration of the joint possession by way of a suit as was held in Asa Ram v. Jagan Nath [Asa Ram v. Jagan Nath, 1934 SCC OnLine Lah 309: AIR 1934 Lah 563].
46. In Jagdish Pershad v. Joti Pershad [Jagdish Pershad v. Joti Pershad, 1974 SCC OnLine Del 214: ILR (1975) 1 Del 841], this Court held that when a joint owner seeks partition of the property, they merely seek a change in the mode of enjoyment of the said property, where a mere denial of right or title by the other co-sharers does not amount to an ouster of the plaintiff.
47. To appreciate implication of denial of title in a suit property and the necessary ingredients of ouster, a reference may be made to the judgment of the Supreme Court in Nagabhushanammal v. C. Chandikeswaralingam [Nagabhushanammal v. C. Chandikeswaralingam, (2016) 4 SCC 434 : (2016) 2 SCC (Civ) 642], which placed reliance on judgment in Vidya Devi v. Prem Prakash [Vidya Devi v. Prem Prakash, (1995) 4 SCC 496] wherein the meaning and connotation of the term "ouster" was expounded as follows: (SCC p. 505, para 28) "28. 'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of a co-owner. They are (i) declaration of hostile animus; (ii) long and uninterrupted possession of the person pleading ouster; and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owners. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 37 course, file appropriate suit including a suit .
for joint possession within the time prescribed by law."
48. In Nisheet Bhalla v. Malini Raj Bhalla [Nisheet Bhalla v. Malini Raj Bhalla, 2006 SCC OnLine Del 649: AIR 2007 Del 60], as well Coordinate Bench of this Court had held that in order to decide the question of court fee, averments made in the plaint are to be seen and the decision cannot be influenced by the pleas taken in the written statement or by the final decision of suit on merits. It is only when the ouster or the exclusion from the property is proved that the question of ad valorem court fee may arise. So long as there is joint possession in law, it is not necessary that the plaintiff should be in actual possession in whole or part of the property.
49. This Court in Krishna Gupta v. Rajinder Nath & Co. HUF [Krishna Gupta v. Rajinder Nath & Co. HUF, 2013 SCC OnLine Del 547] held that while ascertaining if the plaintiff had been ousted from the suit property, the same must be indisputably admitted by the plaintiff in their plaint. Specific sentences and paras in the plaint cannot be read in the abstract while determining an ouster especially when the plaintiff has categorically stated that they are in joint and constructive possession of the suit property. Thus, once an express plea of constructive possession has been made, the onus to prove ouster for the payment of the ad volarem court fee shifts onto the defendants.
50. From a combined reading of the aforesaid judgments, it is clear that a party claiming partition of the property is liable to pay ad volarem court fee only in those circumstances where "ouster", pleaded as a defence by defendants for the purpose of making out a case of adverse possession, is established.
17. Thus, thepredominant view is that a suit for ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 38 partition filed by a co-sharer in possession is to be .
valued for Court fee under Article 13(vi) of Schedule II of the H.P. Court Fee Act and by a co-sharer out of possession seeking possession under Section 7(v)(b) of the Court Fee Act.
18. Mr. K.D.Sood learned Senior Advocate submitted that a suit can be valued under Article 13(vi) only when a declaration of the title is sought by the plaintiff; otherwise, the suit is governed by Section 7
(v)(b) of the Court Fee Act and when a Specific Section has been provided, recourse cannot be had to the general provision. This submission appears to be attractive but cannot be accepted. As was pointed out by the Bombay High Court in Shankar Maruti Girme (supra that )in a suit for partition only joint possession is being converted into separate possession and such a suit cannot be valued under any of the Articles and the residuary Article 13(vi) of the Court Fee Act will apply to such a suit. Hence, the submission that the suit for partition cannot fall within the residuary Article cannot be accepted.
19. The other judgments cited by Mr. K.D.Sood, ::: Downloaded on - 23/07/2024 20:33:14 :::CIS 39 learned Senior Advocate do not apply to the present .
case. Meenakshisundaram Chettiar (supra)was dealing with the suit for accounts and it was held that the plaintiff was not entitled to arbitrarily value such a suit.In the present case, the suit has been filed for partition and not for accounts; hence, the cited judgment does not apply to the present case.
20. In Bhagwanti Devi (supra), the Court was concerned with a suit for possession. It has already been found above that the suit for partition by joint owner is not a suit for possession and this judgment will not apply to the present case.
21 Consequently, the suit cannot be said to be improperly valued.
OMP No. 847 of 2022 in C.S. No. 140 of 2022 List for consideration on 29.07.2024.
Civil Suit No. 28 of 2024.
List along with connected matter.
(Rakesh Kainthla) Judge 23rd July, 2024 (ravinder) ::: Downloaded on - 23/07/2024 20:33:14 :::CIS