Andhra Pradesh High Court - Amravati
Karri Suryachandra Rao vs Karri Narayana Died on 1 May, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, Battu Devanand
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24.Bandla S-inivasa Rao, S/o Krishnmma 54 years, Cultivation, R/o Mittapalem,
Near Rama Mandiram, Inkoltu Village and Mandal, Prakasari District.
22. Velidi Padma, W/o Veeraswamy, 51 years, cultivation, R/o Near Survya Public
School, Gollapalem Road, Inkollu Village and Mandal, Prakasam District.
23.Narne Shakuntala, W/o Seshaiah, 57 years, cultivation, R/o Mittapalem, Near
Rama Mandiram, Inkoliu Village and Mandal, Prakasarn District.
24.K. Man konda Pdma, W/o Srinivasa Rao, 44 years, housewife,
R/o D.NP, 51-8-40/2, Marthi Towers, K.R.M. Colony,
Seetammachara, Visakhapatnam, Visakhapatnam District.
..Respondents/Petitioners.
25. Karri Narayana (DIED),
26. Maddineni Narasimham, (Died).
27.Maddineni Tulasamma, (Died).
28. Karri Narasimhaswamy, (Died).
29.Karri Ramanamma, (Died).
30. Bandia Srimannarayana, (Died).
31.Karri Venkateswarlu, (Died).
32. Karri Subba Rao, (Died}.
33. Karri Hari Babu @ Harinarayana, (Died).
34, Narne Saraswathamma, (Died).
35. Karri Nagamma, (Died)
36. Chinnam Subbaravamma, (Died).
37. Maddineni Tulasamma, (Died)
38.K. Lalithamma, (Died).
39.7. Sankaraiah, (Died).
40. Karri Gopalaswamy, (Died)
41.Karri Vardhanamma, (Died).
42, Bandia Kamalamma, (Died).
43. Karri Bhanumathi, (Died).
44. Bandla Subba Rao, (Died).
45, Bandla Chenga Rao, (Died).
46. Bandla Veeranjaneyulu, Died).
47, Karri Rangaswamy, (Died)
...Respondents
(Respondents in-do-)
Petition under Section 151 CPC, 1908 praying that in the circumstances stated
in the affidavit filed herein, the High Court may be pleased to return the above -
Appeal for presentation in the proper court, subject to limitation, pending disposal of
A.S. No. 515 of 2019, on the file of the High Court.
The Petition coming on for hearing upon perusing the petition and affidavit
filed herein and upon hearing the arguments of Sri M.V. Durga Prasad, Advocate for
petitioner and of Sri N. Subba Rao, Advocate for respondent Nos. 1 to 24, the Court
made the following
ORDER :-
fs soSF3RY HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND HON'BLE SRI JUSTICE BATTU DEVANAND LA. No.1 of 2020 in A.S. No.515 of 2019 JUDGMENT : (per the Hon'ble Sri Justice C.Praveen Kumar}
1. The present I.A. came to be filed by the respondent herein seeking return of the above Appeal Suit and presentation of it in the appropriate court.
2. Originally, one Karri Narayana (died) along with the petitioner and another (died) filed O.S. No.176 of 1970 on the file of the Senior Civil Judge, Parchur, Prakasam District for partition and separate possession of the suit schedule property by metes and bounds and for such other reliefs.
3. The valuation of the suit (partition and possession) was done as under :
Market value of the property " Rs. 1,25,680.00 1st Plaintiff's half share . Rs. 62,840.00 3/4th of the same . Rs. 47,130.00 Half of movable property . Rs. 1,950.00 Total Rs. 49,080.00
4. The court fee paid under Section 34(1} of A.P. Court Fees & Suit Valuation Act was Rs.2,386/-. By its judgment & decree dated 11.7.1980, the O.S. was dismissed. Challenging the same, A.S.No.817 of 1981 came to be filed before the Hon'ble High Court, which was also rejected on 15.4.1998. It is to be noted here that the Appeal was valued at Rs.47,130/- as per Section 49 of APCF & SV Act, 1956. Agegrieved by the judgment in Appeal, the plaintiffs preferred LPA No.181 of 1999, which was allowed on 2.12.2013, setting aside the judgment passed in A.3.No.817 of 1981 and consequently decreeing the suit.
3. Thereafter, 1.A. No.246 of 2015 in O.S. No.176 of 1970 came to be filed under Order 20 Rule 18 with a court fee of Re.1/-, seeking the following reliefs :
a} for passing Final Decree in terms of preliminary decree passed as per Letter Patent Appeal No.181/1999 on the file of Honourable High Court of A.P. by way of appointing an Advocate Commissioner to divide the suit schedule property into two equal shares and allot one such share to the second petitioner by metes and bounds with good and bad qualities;
b} to grant costs of the petition;
c} to pass such other order or orders in the circumstances of the case.
6. By an order dated 15.2.2017, the Senior Civil Judge at Parchur passed the following order :
"In the result, a final decrce is passed in terms of preliminary decree as per the Judgment in Letters Patent Appeal No.181/1999 on the file of Hon'ble High Court of A.P. Further, Sri CSR is appointed as Advocate Commissioner to divide the suit schedule property into two equal shares and allot one such share to the 2°4 petitioner by metes and bounds taking good and bad qualities, His fee is fixed at Rs.20,000/- (Rupees twenty thousand only) to be payable directly by the 2°¢ petitioner. For report call on 17.4.2017,"
7. Meanwhile, an Advocate Commissioner came to be appointed to divide the suit schedule property into two equal shares. But, assailing the order dated 15.2.2017, A.S. No.687 of 2017 came to be preferred before the High Court. It is to be noted that in the above said A.S., the value of the Appeal was shown as Rs.30,93,000/- ie., the total value of the properties and the Court fee paid was Rs.200/-.
Ta, .
8. The Hon'ble High Court allowed A.S.No.687 of 2017 to the extent of setting aside the final decree, but, however, confirmed the order appointing the Advocate Commissioner. Pursuant thereto, the Advocate Commissioner visited the suit schedule property on 11.3.2018 and executed the warrant. Objections to the report of Advocate Commissioner were filed. By an order dated 2.7,2018, the trial court overruled the objections raised and posted the matter for drawl of lots. After complying with the requirements of law, the Senior Civil Judge at Parchur by its order dated 12.10.2018 in FDIA No.246 of 2015 in O.S.No.176 of 1970 passed the final decree. The petitioner therein was also directed to deposit non-judicial stamp paper along with valuation certificate to engross the final decree.
9. At this stage, it would be useful to extract the endorsement of the Senior Civil Judge, which is as under :
"Final decree engrossed on a Judgment paper as per Hon'ble High Court's Circular No.7 /SO/2004 in ROC.No.977/S01/2003, dated 90-01-2004. The deficit stamp duty amount of Rs.89,919/- (Rupees eighty nine thousand nine hundred and nineteen only) paid by the petitioners and the same is being deposited by the Court under challan no.2723 dated 25-10-2018 remitted under Major Head - 0030, Sub Major Head --- 02, Minor Head-103, Sub Head-01, in State Bank of India, Inkollu Branch."
10. Challenging the final decree dated 12.10.2018, the defendants preferred the present appeal under Section 96 C.P.C., showing the value of Appeal as Rs.30,93,000/-. It is also to be noted that though some of the respondents herein are alive (namely R21 and R22) they were shown as "dead" in the cause title. It is also to be noted that the said appeal came to be filed before the Hon'ble High Court with a delay of 124 days. By an order dated 26.11.2019, the delay in filing the Appeal was condoned. Later, the present application i.e., LA.No.1 a of 2020 came to be filed for return of the Appeal to be presented before the appropriate court.
11. Sri Chakravarthi, the learned counsel appearing for the petitioner in I.A. would contend that no appeal would lie before this Court and the proper forum would be the District Court. He would further contend that in order to ascertain the jurisdiction, the value as shown in the suit should be reckoned with. Insofar as the endorsement of Senior Civil Judge, he would contend that value shall be the amount to be paid towards stamp duty for engrossing the final decree. He further pleads that unless stamps are deposited, the court cannot draft the decree. In other words, his plea is that insofar as values shown now, the same is for payment of stamp duty.
12. On the other hand, Sri N.Subba Rao, the learned counsel for the respondents, would submit that even in the earlier round of litigation i.e., in A.S.No.687 of 2007, the value of Appeal was shown around Rs.30,00,000/-, which was not opposed. Therefore, raising an objection now, as to the value of property, would be incorrect and improper. He would further submit that since the order impugned was prior to amendment (15.11.2018), there is no illegality in preferring this Appeal before this Court, as according to him, date of order is the criterion for preferring the Appeal and not the date of filing of appeal.
13. In order to appreciate the issues raised, it would be useful to refer to the amendments to Section 17 of A.P. Civil Court Act, which are as under :
Section 17 of APCC Act 1972 was amended by APCC (Amendment) Act 1989 (Act 30 of 1989) wherein under Section
--= & ra T3339) t7(i)}{aj(ii) of Principal Act, the words, 'thirty thousand' were substituted with 'one lakh'. By Act 28 of 2000, the words 'one lakh' were substituted with 'three lakhs'. And by Act 16 of 2005, the words three lakhs' were substituted with 'five lakhs'. Thereafter, by Act No.28 of 2018, which came into effect from 15.11.2018, the pecuniary jurisdiction of Junior Civil Judge is increased up to 20 lakhs, while that of Senior Civil Judge Court to above 20 lakhs and up to 530 lakhs, while that of District Courts to above 50 lakhs.
14. The point that arises for consideration is whether an appeal would lie before this court?
15. As observed earlier, the valuation of suit property was valued at Rs.49,080/-, which was in the year 1970. After the LPA was allowed on 2.12.2013, I.A. No.246 of 2015 came to be filed before the Senior Civil Judge, Parchur, for appointment of an Advocate Commissioner and for partition, which was allowed on 15.2.2017, In the schedule annexed to the I.A., the value of each of the property was mentioned and total value was shown as Rs.30,93,000/-. It is no doubt true that an appeal came to be filed before High Court vide A.S.No.687 of 2017 showing the value of appeal as Rs.30,93,000/-, but what emerges out from the above is that at the time of filing of the O.S., the suit was valued at Rs.49,080/-. The enhancement of value of the property to Rs.30,93,000/- was for the purpose of stamp duty payable. Before passing a final decree for partition, it is duty of the court to call upon the parties to furnish requisite stamp papers for engrossing the decree along with present day valuation certificate. Therefore, the values of the property mentioned in the 1.A. were only for payment of stamp duty, as the final decree amounts to an instrument of partition under Section 2(15) of Indian Stamp Act.
was already passed on the Said value.
16. The legal issue now is whether the value of the property as mentioned in suit or as mentioned later in LA. has to be taken into consideration for deciding the jurisdiction of the court, which has to hear this appeal.
17. In order to appreciate the rival contentions, it would be useful to refer to certain Provisions of C.P.C.; A.P. Court Fees & Suit Valuation Act and A.P. Civil Courts Act.
18. Section 2(2) of C.P.C. defines a decree and explanation to Section 2(2) states that a decree is preliminary when further Proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit.
19. Under Order XxvI C.P.C. states that once a preliminary decree is passed, a duty is cast on the court to refer the matter to a Commissioner for division of properties, unless the parties thereunder agree as to the manner in which the Property is to be divided. Thereafter, the Commissioner would conduct enquiry and submit a final report to the Court and basing on the same, (either confirmed or varied) the Court would pass the final decree under Order XXVI Rule 14(3),
20. Order Xx Rule 5 C.P.c. States that in the suits, in which issues have been framed, the court shall State its finding or decision, with the reason thereof, upon each Separate issue, unless the finding upon anyone or more of the issue is sufficient in the decision of the suit.
FSS3342"
21. Rule 18 of Order XX C.P.C., which deals with decrees in suits for partition and possession reads as under:
"Rule 18: Decree in suit for partition of property or separate possession of a share therein- Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,--
(1) if and insofar as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any Gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section 54;
(2) if and insofar as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties, interested in the property and giving such further directions as may be required".
22. In the instant case, a preliminary decree for partition based on original value of the suit is already passed. A final decree is also passed, which is under challenge in this Appeal.
23. From a reading of the above, it is clear that once a preliminary decree is passed and when the same become final, the share of the parties in the subject properties stand established. The final decree proceedings shall determine the portion of the properties which fall to the share of either parties to the dispute. The decree so passed shall be engrossed on non-judicial stamp papers ie., by payment of necessary stamp duty, for which the petitioner would be asked to deposit the necessary non-judicial stamp papers and the Valuation Certificate.
94. A Division Bench of the High Court of Judicature of Andhra Pradesh at Hyderabad in Y.Laxmi Prasannam v. Y.Narasayya', after '1974(1} APLJ 304 referring to Section 2(15) of Indian Stamp Act and the judgments of various courts held as under :
"It is now well settled that, a final decree for partition has no existence as a decree until it is engrossed on a proper non-judicial stamp paper, and till that is done, the suit will be considered as pending ; (See Satyanandham us. Namayya (AIR 1938 Madras 307).
In Board of Revenue vs. Moldeen (AIR 1956 Madras 207) {F.B.} a Full Bench of the Madras High Court held that, if the Parties do not furnish the Court with non-judicial stamp papers of sufficient value the court can certainly refuse to draw up a final decree and sign it.
In China Venkatappa vs. P. Venkatrappa (AIR 1943 Madras
630) the Madras High Court held that, before a decree for partition could be executed, the holder must pay the stamp duty required by Art.45 of the Stamp Act and have the decree drawn up on non-judicial stamp paper; Raja Mannar C.J., Speaking for the Full Bench of the Madras High Court in Board of Revenue vs. Moideen (AIR 1956, Madras
207) (F.B.) further observed that, if the parties choose to take the risk and do not furnish the stamp papers, the Court has no power to draw up a decree on unstamped paper and sign it.
Respectfully following the above Full Bench Decision of the madras High Court, we direct the parties to deposit the requisite Non- Judicial Stamp for the purpose of drawing up a decree on it. We order accordingly."
25. Therefore, the values of the property shown in the schedule to the LA. No.245 of 2015, filed for passing of final decree, is for payment of stamp duty. Having regard to the values mentioned in the I.A., the petitioner was directed to deposit balance of stamp duty of Rs.89,919/-, which was paid vide challan No.2723, dated 25.10.2018.
Therefore, what was paid cannot be said to be a court fee.
26. At this stage, it would also be useful to refer to Section 17 of A.P. Civil Court Act, which reads as under :
"17. Appeals from the decrees and orders of Courts in the Districts,
- fl) An appeal shall, when it is allowed by law, lie from any decree or order in a civil suit or proceeding: -
(i) of the District Court, to thé'High Court;
% a.
{ii} of the Court of Senior Civil Judge,-
(a) to the District Court, when the amount or value of the subject matter of the suit or proceeding is [not more than rupees fifty lakhs,|
(b) to the High Court ; in other cases ; and
(iii) of the Court of Junior Civil Judge, to the District Court.
(2) The District Judge may, subject to the orders of the High Court transfer for disposal any appeal from the decree or order of a Court of Junior Civil Judge preferred in the District Court, to any Court of Senior Civil Judge within the district.
(3) Where a Court of Senior Civil Judge is established in any district at a place remote from the seat of the District Court, the High Court, may, with the previous sanction of the Government, direct that an appeal from the decree or order of any Court of Junior Civil Judge within the local limits of the jurisdiction of such Court of Senior Civil Judge shall be preferred in the said Court of Senior Civil Judge Provided that the District Judge may, from time to time, transfer to his own Court, any appeal so preferred, and dispose it of himself.
27. From a plain reading of Section 17(ii)(a), it is clear that an appeal shall lie from any order, decree or order of a civil suit or proceeding from the court of Senior Civil judge to the District Court when the amount or value of the subject matter of the suit or proceedings is not more than Rs.15,000/-; the emphasis being on the words "value of the subject matter of the suit'. Therefore, for the purpose of deciding the forum, for preferring an appeal against the judgment of the Senior Civil Judge, the value of the suit only has to be taken into consideration, in which event, it would be Rs.47,130/-. If the value as shown in the Appeal is taken into consideration, at times, the original court which tried the suit, would be losing the jurisdiction to try the suit itself, That would not have been the purport and intendment of the legislature and the amendment made.
"
28. The argument of the learned counsel for the respondent is that | in view of the amendment, and as the value of property shown in the LA. and in the Appeal at Rs.30,93,000/-, High Court is the proper forum to deal with this appeal.
29. It is to be noted here that suit was never valued at Rs.30,93,000/ -. As observed earlier, it was valued only at Rs.47,130/-. Secondly, though no objection was raised in the earlier round of litigation, when this Hon'ble Court entertained the Appeal and partially set aside the order in LA.No.246 of 2015, the said proceedings, in our view, cannot be treated asa nullity now even if we hold that the proper forum for entertaining the A.S. is. the District Court, as the order in the Said appeal was for reconsideration of I.A. afresh except to the extent of appointment of the Advocate Commissioner. Since an objection is now raised, the court went into the aspect of jurisdiction of this court in entertaining the appeal and have come toa conclusion that it is the value of the suit, which has to be reckoned with for deciding the jurisdiction of Appellate forum. As heid earlier the value of Rs.30,93,000 /- shown in LA, which was carried out in Appeal, was for Payment of stamp duty on the value of the property, to be engrossed.
30. At this stage, it would be useful to refer to the findings of the 5 Judge Bench of this Court in Vallabhaneni Lakshmana Swamy ov.
Valluru Basavaiah (L.B.P, which are as under -
"73. Therefore, we reached the following conclusions :
1. That the Civil Court (Amendment) Act 30 of 1989 is applicable prospectively from 1.12,.1989.
2. Even in case of suits which were filed earlier to the amendment and they are pending disposal as on the date of the amendment came sy * 2004 (5) ALD 807 "
a ea ty f ry, fy.
af 11 into force, the appeal if any has to be necessarily filed before the Forum created under the amended Act depending on the pecuniary limits. To this limited extent, the decision in Kotina Papaiah's case (supra) and Kameshwaramma's case {supra} and Haragopal's case (supra) stand modified.
4. Any appeal having been presented before date of amended Act coming into force and the appeals pending as on the said date are required to be disposed of by the Courts, wherever they were pending and the amendment will not have any effect on pending appeals either presented or pending.
4. The suits or petitions in which decrees were passed prior to 1,12.1989, they will be deait with in accordance with the pre-amended procedure.
5. In the cases before us, even after the amendment came into force on 1.12.1989, number of appeals having value less than Rs. one /3 lakhs were admitted by this Court and some of them were disposed of by virtue of the judgment of the Division Bench in Kameshwaramma''s case (supra) subsequent cases though in fact they do not fall within the category of either pending appeals or appeals presented, before the amendment. The pecuniary limits and forum go together and the amendment being prospective in operation, the appeals ought to have been filed before the amended forum. But, taking into consideration that large number of appeals were already admitted by this Court, and they are pending for a considerable length of time and keeping in view the maxim that "Actus curiae neminem gravabit" (An act of the Court shall prejudice no man}, we declare that such of the cases which were filed subsequent to amendment are deemed to have been transferred to this Court under Section 24 of Code of Civil Procedure for their disposal in accordance with law.
74. The judgment of the Full Bench in Motichand Jain's case (supra) declaring that the Amendment Act 30 of 1989 falling under adjectival law has retrospective effect stands overruled subject to the aforesaid conclusion."
31. Having regard to the judgment of the larger Bench of this Court referred to above, as the suit was valued at Rs.47,130/-; and in view of the amendment to Section 17(ii)(a) of A.P. Court Fees Act, we hold that the proper forum for preferring the Appeal would be the District Court.
"
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