Jammu & Kashmir High Court
Abdul Rehman Bandey vs Mst. Sakina Begum on 17 March, 1989
Equivalent citations: AIR1989J&K93, AIR 1989 JAMMU AND KASHMIR 93
Author: A.S. Anand
Bench: A.S. Anand
ORDER A.S. Anand, C.J.
1. This petition of revision arises in a suit the brief facts on which are as under : --
The plaintiff brought a suit for possession, declaration and injunction on the plea that she was in possession of 1 kanals 6 marla of land out of Khasra No. 141 and 1 kanal 4 marla out of Khasra No. 326 and half of the first floor of the house situate in village Naggar (Bhadarwah) as owner because her husband had given it to her in lieu of dower as evidenced by the document executed by her husband on 25th Poh, 2002 (Bikrami) and she remained in its possession eversmce till she was dispossessed about 9 months prior to the institution of the suit. She accordingly prayed that her title to hold the property in lieu of dower be declared and defendant-petitioner restrained from changing the nature of the suit property with a consequential relief of possession. The suit was valued in terms of Section 7(iv)(c) of the Court-fees Act, which the defendant objected and one of the issues framed by the trial Court is : "whether the suit has been properly valued for the purposes of court-fees and jurisdiction?"
2. The trial Court held that the suit has been properly valued in terms of Section 7(iv)(c) of the Court-fees Act and the reasons advanced as spelt out in paras 18 and 19 of the order impugned which reads :
"18. Before coming to the court, the echo of the above mentioned challenge and denials must be resounding in her ears. In such circumstances she must have been forced and coerced to think that let her go to a court of law to establish and seek a declaration.
(i) That the suit property was given to her by her husband as dower and she never remitted it.
(ii) That she is entitled to have it under the personal law of the parties and there is no custom to the contrary.
(iii) That the suit property never formed part of the estate of her husband at the time of his death and defendant is not entitled to any part of it as an heir of the deceased.
19. Without getting the above declaration in her favour under Section 42 of the Specific Relief Act. She cannot go direct for the reliefs of possession and injunction first she must sue for declaration of her title to the property. When she seeks declaration, then proviso to section 42 (supra) enjoins upon her to pray for further relief (consequential) inherent in the situation. The consequential reliefs are the relief of possession because she has been dispossessed. After getting declaration and possession she is supposed to pray for perpetual injunction as a bulwark against any challenge to her status and possession in the future."
3. Thus, the only question for determination is: whether the suit as brought by the plaintiff is to be valued in terms of Section 7(iv)(c) as held by the trial court or Section 7(v) of the Court-fees Act as contended by the defendant-petitioner.
4. The argument of Mr. Kotwal is that the relief of declaration in this case is implicit in the relief of possession because she has based her claim for possession, firstly, that she was dispossessed while in possession; and, secondly, that the suit property was given to her by her husband and she remained in peaceful possession of the same till her forcible, dispossession about 9 months prior to the institution of the suit. Mr. Kotwal urged that the plaintiff having pleaded that she was put in possession of the suit property by her husband in lieu of dower and she remained in occupation of the same till the date of dispossession, relief of declaration is not the main relief. The document evidencing that she got it in lieu of dower does not stand in her way to get property on the basis of possessory title as she claims to have remained in possession of it ever since her marriage more than 40 years ago. Besides she has also pleaded that defendant had no right to hold the property and his possession is only of a tresspasser. Thus, plaintiff can get a decree for possession on the plea that she was dispossessed while in possession, if the defendant is a trespasser as alleged without proving her own title. In case her title is denied she has to prove better title than that of the defendant but in either case, the suit is essentially for possession arid declaration is implicit in it and has to be valued in terms of Section 7(v) of the Court-fees Act and not as held by the trial court.
5. The principle that the question of court-fees is to be considered in the light of the allegations made in the plaint, is well settle to be re-stated. In Neelavathi v. N. Natrajan, AIR 1980 SC 691, it was held (para 6) :
".......It is settled law that the question of Court Fees must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and taken as a whole."
This was also held in Ramzan v. Khaliq Bhat 1981 Kash LJ 368 : (AIR 1981 J & K 84), where I observed :
"That the question of court-fee is to be decided with reference to the averments made in the plaint is no longer a moot point. Whether or not a case is governed under Section 7(iv)(c) of the Court-fees Act, the vital test is whether the reliefs asked for by the plaintiffs are inter-dependant i.e. the consequential relief flows directly from the declaration giveri or independent of each other. In case the reliefs are inter-dependent than the plaintiffs must give consolidated valuation for the two reliefs but in case the reliefs are independent of each other, they are not required to do so."
It has been argued that the point in issue stand concluded by this Court in Ramzan v. Khaliq Bhat (supra). However, this is not so because the facts of that case were quite different where the suit was brought by the sons to declare the document executed by their father null and void, and it was due to this that valuation fixed under Section 7(v)(c) was held to be valid because they were not entitled to possession without avoiding the document and once the documents were declared nullity, the relief of possession was to follow as a direct consequence of the declaration.
6. But in this case the position is quite different. The defendant is not in possession of the suit property on the basis of any other right except as owner. Plaintiff in order to get possession, has in any case to prove her better title, if the same is controverted but that in no way alters the nature of the suit which is essentially for possession based both on prior possession and better title. Plaintiffs suit, therefore, does not depend on the declaration alone because in order to obtain possession she has to prove : firstly, that she was in possession within 12 years from the date of dispossession; and, secondly, that she was entitled to a decree for possession on the basis of the document wherein the suit property was given to her as a part of the dower. The facts of the present case are clearly covered by the law laid down in G. L. Vaishnavi v. Triloki Nath AIR 1968 J & K 110 wherein it was held :
"Where a suit seeks for declaration of ownership of certain property and a consequential injunction restraining the defendant from alienating the particular property, with direction to the defendant to remove certain construction made therein, the plaintiff has to value his relief under Section 7(iv)(c) in respect of the relief for declaration and consequential relief of injunction. As regards the valuation it is the option of the plaintiff to value his claim and it is the amount at which he has valued the relief sought for court-fee that determines the value for jurisdiction of the suit and not vice versa.
xx xx xx xx xx xx In regard to the relief of possession, declaration need not be asked for. So also for the ancillary direction for removal of the construction no additional court-fee be paid But the plaintiff had to value this property in respect of which possession is sought for, at 8 times and 50 times the land revenue in accordance with Section 7(v)(b) of the Court-fees Act reads with Rule 1 of Rules framed under Suits Valuation Act..."
7. I am in respectful agreement with this proposition. The present case is also covered by the Full Bench judgment of the Mysore High Court in H.R. Patel v. Mrs. C J. Venkatalakshamma AIR 1955 Mysore 65, which reads (para 2) :
"The plaintiff in a suit for recovery of possession of land, if entitled to possession on proof of title, and there is no cloud on the title occasioned for instance by a sale either by herself or through the court, which has to be removed by a declaration before possession can be given, is bound to pay court-fees on the basis that it is a suit for possession only though as a matter of fact there is a prayer in the plaint for a declaration of his title. The court in such a case should be guided by the substance of the case of the plaintiff as set out in the plaint and treat it as if he had not prayed for the superfluous and unnecessary prayer for declaration. To hold otherwise would result in the plaintiff evading payment of legitimate court-fees. Under Clause (v) of Section 4 of the Mysore Court-fees Act, by mere adding an unnecessary prayer for declaration of title........."
This statement of law has been followed by a Division Bench of this Court reported in 1983 Kash LJ 371 : (AIR 1984 J & K 1 at pp. 5-6) where speaking for the Bench, Kotwal J. observed :
".....Before Clause (c) may apply, it has to be shown that the substantive relief claimed in the suit is declaration and the consequential relief flows from it, which cannot be claimed independently of it. In other words, it must be shown that a suit for the relief claimed as a consequential relief will not He, unless the relief of declaration is sought in it. Seeking a declaration of the right and not proof of it should be essential for bringing a suit within the purview of Clause (c). When grant of the consequential relief claimed in the suit, it will not fall under Clause (c). To illustrate it by giving examples, where the plaintiff claims recovery of possession of the suit property as its owner, it will not be necessary for him to seek a declaration that he is the owner of the property and to claim its possession only by way of consequential relief. He can file a suit for possession simpliciter and may have to prove his ownership, if traversed by the defendant, to get a decree for possession. On the other hand, where a plaintiff seeks possession of the suit property, which the defendant has occupied on the basis of a sale deed executed by the person through whom the plaintiff claims the property, and which the plaintiff alleges is vitiated by fraud or undue influence, he cannot bring a suit for possession simpiiciter, and shall have to seek a declaration to the effect that the sale deed is void on that account, claiming its possession by way of consequential relief only, for, so long as the sale deed stands in his way, he will not be entitled to possession of the suit property, and shall have to get rid of the sale deed by a decree of the court. Furthermore, the fact whether the declaration of right is a substantive relief, must appear from the substance of the claim, and not from the bald averments made in the plaint, which has been artistically drafted to evade payment of the requisite court-fee. The law to this extent is well settled....."
The ratio of the case applies to the facts of the present case as the suit of the plaintiff is essentially for possession covered by Article 142 of the Limitation Act, and, therefore, it has to be valued in accordance with Section 7(v) and the trial court was in error while holding that the relief of possession is a consequential relief flowing from the relief of declaration because both, in form and substance, the suit is for the recovery of possession on the basis of prior possession and in order to succeed she will have to prove better title. It is strange that the trial court in reaching the conclusion has mechanically reproduced excerpts of a few judgments without disclosing its mind as to which one it has followed. This is no way of deciding the case involving such questions of law and facts. Even the observations of this court reported in 1983 Kash LJ 371 : (AIR 1984 J & K 1) have been quoted out of context, but without applying the proposition either way.
8. As a result the petition succeeds. The order of the trial court is set aside and the findings recorded on the issue reversed by holding that the plaintiffs suit is to be valued in terms of Section 7(v) (b) and (c) of the Court fees Act. Trial Court shall now act accordingly.
9. Record of the case is directed to be sent back to the trial court forthwith. The parties are directed, to appear before the trial court on 8th April 1989.