Ram Avtar Singh vs Thakur Rattan Singh
2010 Latest Caselaw 3638 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on: 04.08.2010
                    Judgment Delivered on: 06.08.2010

+            R.S.A.No. 358/2006 & C.M.Appl.15420/2006


RAM AVTAR SINGH                                 ...........Appellant
                          Through:   Ms.Inderjeet Saroop and
                                     Ms.Anuradha, Advocates.

                    Versus

THAKUR RATTAN SINGH                            ..........Respondent
                  Through:           Mr.Kamal Mehta & Mr.Rohit
                                     Sharma, Advocates

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?              Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes


INDERMEET KAUR, J.

1. This is an unfortunate dispute between a father and son. The

father Thakur Rattan Singh was the plaintiff before the trial court.

He had filed a suit against his son Ram Avtar Singh, the defendant

for possession and mandatory injunction. Contention of the

plaintiff/respondent was that he is the owner of the premises i.e. B-

94, Devli Road, Jawahar Park, Khan Pur, New Delhi. The defendant

was permitted to live on the ground floor as a lessee; no license fee

was being paid by the defendant. The conduct of the defendant

and his wife was not cordial; they created nuisance and hindrance

in the life of the plaintiff. By public advertisement dated 26.4.2003,

the plaintiff had dis-inherited his son. On 29.5.2003, he terminated

his lease asking him to vacate the suit premises. Defendant had

not complied with the said request. The plaintiff was forced to file

the present suit.

2. In the written statement, the defendant had denied that he

was living in his capacity as a lessee. His contention was that he

had made a substantial financial contribution of Rs.5 lakhs for the

purchase of this property although admittedly this property was

registered in the name of his father. He denied any harassment by

himself or his wife to his father.

3. The trial judge had framed seven issues. All the issues were

decided in favour of the plaintiff and against the defendant. A

decree of possession and damages at the rate of Rs.2000/- was

passed against the defendant.

4. The appellate court vide its judgment dated 11.9.2006 had

endorsed the finding of the trial judge.

5. Aggrieved by the judgment of the two fact finding courts

below, the defendant/son has filed this second appeal.

6. On 20.8.2008, the following substantial questions of law had

been formatted by this court:

(1) Whether in view of the fact that the market value of the property in suit was Rs.10 lacs as also admitted by the respondent in the cross-examination, can the valuation of the suit for purpose of court fee and jurisdiction at Rs.58,000/- be accepted?

(2) Whether in view of the gross under-valuation of the suit made by the respondent and the serious prejudice having been caused to the appellant on merits due to the same the decree could still be passed against the appellant?

(3) Whether in view of the under-valuation the provisions of Section 11 of the Suits Valuation Act do not come into play so as to nullify the whole proceedings culminating into the decree?

(4) Whether the approach made by the courts below in ignoring the actual valuation of the suit property is mis-directed when the decree stands vitiated?

(5) Whether the courts below were wrong in excluding the statement of the appellant regarding passing of the actual consideration when the provisions of Section 91, 92 of Evidence

Act did not come in the way of admissibility of evidence on that point?

(6) Whether the transaction between the father and the son as in the present case, can be said to be hit by Benami Transactions (Prohibition) Act?

7. Before this court it has been urged that

(i) The courts below had erred in holding that the suit has been

property valued for the purpose of court fee and jurisdiction. PW-1

had himself in his cross-examination admitted that the suit

property was valued more than Rs.10 lakhs. Provisions of Section

91 and 92 of the Indian Evidence Act had been misconstrued. In

these circumstances, the finding of the two courts below that

valuation of the suit for the purpose of court fee and jurisdiction

which had been valued at Rs.20000/- on which requisite fee had

been affixed was clearly an illegality.

(ii) The courts below had also failed to appreciate that the

contribution of the defendant for the purchase of the aforenoted

property was substantial. The conflicting stand of the plaintiff had

not been appreciated by the courts in its correct perspective. The

provisions of the Benami Transactions (Prohibition) Act would not

apply inter se a father-son.

8. Arguments have been countered by the learned counsel for

the respondent.

9. This court shall first deal with the second submission of the

learned counsel for the plaintiff. The trial judge had appreciated

the oral testimony of three witnesses who had been examined on

behalf of the plaintiff and two witnesses who had been examined

on behalf of the defendant. Besides this, the documents of the

purchase of this property i.e. agreement to sell and power of

attorney clearly evidenced that the purchaser of this property was

the plaintiff; correspondingly, the defendant had failed to adduce

any documentary evidence. The court had appreciated the fact

that the defendant/son was an auto rickshaw driver earning

Rs.3000/- per month of which Rs.2000/- was being paid by him as a

rental. His family consisted of himself, his wife and three

daughters; his submission that he had borrowed money from his

brother-in-law to contribute for the purchase of this property was

not relied upon in view of the conflicting versions given by the two

witnesses of the defendant of whom DW-2 was the said brother-in-

law. It was never the defence of the defendant/appellant in his

written statement that the Benami Transactions (Prohibition) Act

was not attracted or that his plaintiff/father was holding the

property as a trustee. Section 4(3)(b) of the said Act does not come

to his aid.

10. This court is sitting in second appeal. The courts below are

the fact finding courts; whether a piece of evidence has been

appreciated correctly or incorrectly; whether this court could have

taken a view different from the view taken by the two courts below

would all amount to a fact finding and roving enquiry which this

court is not permitted to go into. The oral and documentary

evidence had been gone into by both the courts below. It is also

not the case of the appellant/defendant that this is a case of no

evidence.

11. The Supreme Court in Dudh Nath Pandey (dead by LRs) vs.

Suresh Chandra Bhattasali (Dead by LRs) AIR 1986 SC 1509 had in

the context of powers of second Appellate Court held as follows:

6. ... .... .... Virtually, the High Court has made a fresh appraisal of the evidence and has come to a different finding

contrary to the finding recorded by the First Appellate Court which the High Court could not do in the exercise of power under S.100 of the Civil P.C. ... .... The High Court, in our opinion, has erred in making a fresh appraisal of the evidence to come to a different conclusion. ... ....

This submission of the learned counsel for the appellant is

thus without any force and is rejected. Question No.6 is

accordingly answered against the appellant.

12. The legal submission advanced before this court is as to

whether the suit has been undervalued and in view of the

admission made by the plaintiff that the suit property was worth

Rs.10 lakhs was it not incumbent upon the court to have dismissed

the suit?

13. This contention of the appellant was dealt with the trial judge

while disposing of issue no.1. Apart from the oral testimony of the

defendant, there was no other evidence before the court; no

witness had been produced by the defendant on the valulation

aspect and no report of any valuer had also been relied upon. The

onus to discharge this issue was upon the defendant and on which

score he has failed to adduce any evidence. The documents relied

upon by the plaintiff i.e. the agreement to sell and the power of

attorney had valued the suit property at Rs.58,000/-. Plaintiff in his

cross-examination had made an admission that the worth of the

suit property may be about Rs.10 lakh but the court had gone on to

hold that this was a presumption of the plaintiff with no actual

knowledge of the same and since onus to discharge this issue was

upon the defendant and he having failed to do so the trial court had

relied upon the averments made by the plaintiff in his plaint and

had decided the issue against the defendant.

14. The first appellate court vide the impugned judgment dated

11.9.2006, on this count, inter alia held has follows:

"Firstly, the first issue was "Whether the suit has not been property valued for the purposes of court fees and jurisdiction?". The ld. Civil Judge decided this issue against the defendant and it was held that suit has been properly valued for the purposes of court fees and jurisdiction. There is no infirmity in the findings of the Ld.Civil Judge on this issue as:

(a) I have seen the evidence and there is no evidence that the value has been improperly given. The onus to prove this issue was on defendant and defendant failed to lead any evidence on this point.

(b) Defendant has also not got the Valuer examined to prove this issue. The defendant has also not shown the value of the neighbourhood house.

(c) The value stated in the document is Rs.58,000/- while defendant states that it is purchased for Rs.10 lacs. U/s. 91 and 92 of the Indian Evidence Act no evidence on the valuation can be given by any authority."

15. Learned counsel for the appellant has urged that the findings

of both the courts below are legally untenable. Provisions of

Section 7 (v) of the Court Fee Act, 1860 are applicable and as such

the value of the whole property should have been taken. The

courts below have erred in holding that the defendant has failed to

produce any evidence. Plaintiff in his cross-examination had

himself valued the suit property at Rs.10 lakh. In this view of the

matter, defendant did not have to lead any evidence as there was a

clear and unequivocal admission by the plaintiff himself. The

decree passed is thus a nullity.

16. While countering these submissions of learned counsel for

the appellant, the respondent has submitted that the valuation as

given by the plaintiff has to be accepted by the courts unless it is

shown that it has been grossly under-valued or grossly over-valued

which in turn has prejudiced the case of the plaintiff which is not

so in this case. Neither has any prejudice been urged and nor has

any prejudice been pointed out.

17. The present case is a suit for possession and mandatory

injunction. The defendant is the son of the plaintiff. As per the

averment made in para 2, the plaintiff had permitted the defendant

to live on the ground floor as a licensee without any license fee.

The suit has been valued in para 10 for the purpose of possession

at Rs.20,000/-, for damages at Rs.4000/- and for mandatory

injunction for Rs.130/- i.e. a total value of Rs.24130/-. Suit

accordingly been filed in the court of Senior civil judge.

18. In Chandi Charan Das vs. Sm.Sushila Bala Dasi AIR 1955

Calcutta 144 the bench of the Calcutta High Court had held that in

a suit for possession on the averment that the defendant is a

licensee and that the license has been revoked the valuation of the

suit for the purpose of jurisdiction is to be determined having

regard to the subject matter involved in the suit. The relevant

extract in this context reads as follows:

"The subject-matter of such a suit is not the property in respect of which the plaintiff claims relief but the relief itself. And the relief is that the licensee should leave the land and structures thereon. The value of this is obviously very much less ordinarily than the value of the property over which the licence is said to have been given. Hence, the valuation of Rs.110/- placed by the plaintiff on the relief he wants to obtain by getting rid of the licensee cannot be considered inadequate."

19. In Smt.Tara Devi vs. Sri Thakur Radh Krishna Maharaj

through Sebaits Chandeshwar Prasad and Meshwar Prasad and

Anr. AIR 1987 SC 2085 the Supreme Court in this context had

made certain observations which are relevant and inter alia read as

follows:

"It is only in cases where it appears to the Court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the Court can examine the valuation and can revise the same."

20. It is, thus, clear that it only when the valuation is grossly

arbitrary and unreasonable which on the face of it shows that it has

been grossly and overtly overvalued or undervalued that the court

will interfere in the valuation.

21. In the instant case although the suit has been titled as a suit

for possession and mandatory injunction yet the body of the plaint

clearly shows that the subject matter of the suit has defined the

defendant as a licensee and the prayer made in the plaint seeks an

ejectment of the licensee with a further direction that he be

injuncted from interfering with the proposed sale which the

plaintiff seeks to effect of the suit property. The subject matter of

the suit gathered from the plaint and the prayer therein reflect that

this is a suit for the ejectment of a licensee with a consequential

relief of injunction. Suit of the plaintiff falls under Section 7 (iv) (c)

of the Court Fee Act, 1870 where in all such suits the plaintiff shall

state the amount at which he values the relief sought for by him.

22. The suit valued by the plaintiff for a total value of Rs.24,130/-

was a fair and adequate valuation on which the requisite court fee

had been paid and on which no interference is called for. The

judgment of Chandi Charan Das (supra) applies on all squares to

the instant case.

23. In a full bench decision of this Court reported in Smt.Sheila

Devi & Ors. Vs. Shri Kishan Lal Kalra & Ors. ILR (Delhi) (2) 1974

491, the court has inter alia held as follows:

"Section 7 (iv) of the Court-fees Act gives a right to the plaintiff in any of the suits mentioned in the clauses of that paragraph to place any valuation that he likes on the relief he seeks, subject, however, to any rules made under Section 9 of the Suits Valuation Act, and the Court has no power to interfere with the plaintiff's valuation."

24. In view of the aforenoted finding, the argument of the

learned counsel for the appellant that first appellate court had

misapplied the provisions of 91 and 92 of the Evidence Act and had

illegally decided to read the documents (agreement to sell and

power of attorney wherein the suit property had been valued at

Rs.58000/-) over and above the oral evidence i.e. the admission of

the plaintiff wherein he had admitted that the value of the property

could be about Rs.10 lakhs is of little consequence. Question no.5

is answered accordingly.

25. The judgment relied upon by the learned counsel for the

appellant in Ramesh Chand Bhardwaja vs. Ram Parkash Sharma

AIR 1991 Delhi 280 is of no help; this was a suit for partition

wherein it was held that the whole of the property sought to be

partitioned should be taken into consideration for the purpose of

jurisdiction and court fee. The judgment in Mahesh Gupta vs.

Ranjit Singh and Ors. AIR 2010 Delhi 4 also does not come to the

aid of the appellant. This was a suit for permanent injunction

where in terms of the prayer clause, the suit had been valued at

Rs.1600/- but for the purpose of court fee and jurisdiction it had

been valued at Rs.20,10,000/- and court fee of Rs.22,500/- was paid

thereon. It was in this context that the appellate court upheld the

finding of the Single Bench that a suit valued at Rs.1600/- but for

the purpose of court fee and jurisdiction was valued at

Rs.20,10,000/- clearly amounted to a forum shopping as this was a

gross overvaluation. The facts of the instant case are distinct.

26. Section 11 of the Suit Valuation Act, 1887 is also of no

assistance to the appellant. It states that an objection of

undervaluation or overvaluation of a suit may be entertained by the

first appellate court but with a rider that this overvaluation or

undervaluation should have prejudicially affected the disposal of

the suit or the appeal. No such prejudice has been shown; in fact,

before the first appellate court this objection even did not find

mention in the grounds of appeal. In Kiran Singh vs. Chaman

Paswan AIR 1954 SC 340 the Supreme Court had observed as

follows:

"... ... ... ... The policy underlying Sections 21 and 99, Civil P.C., and S. 11 of the Suits Valuation Act is the same namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds unless it had resulted in failure of justice, and the policy of the legislature, has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act."

27. The jurisdiction conferred on the appellate court under

Section 11 of Suit Valuation Act is an equitable one which has to be

exercised only when there has been an erroneous assumption of

jurisdiction by a subordinate court as result of overvaluation or

undervaluation and a consequential failure of justice. There is no

such gross undervaluation which could warrant a finding that the

lack of pecuniary jurisdiction of the Senior Civil Judge prejudiced

the case of the plaintiff on its merits; as such no interference is

called for by this court. Questions No.1 to 4 are answered in the

negative and against the appellant.

28. Appeal is without any merit. Appeal as also the pending

application is dismissed.

INDERMEET KAUR, J.

AUGUST 06, 2010 rb