V.S.K Sood vs Vir Surinder Beri & Ors
2013 Latest Caselaw 3750 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+                 I.A. No. 20366/2011in        CS(OS) 1386/2011
%                                                 Reserved on: 13th August, 2013
                                                  Decided on: 26th August, 2013
V.S.K SOOD                                                       ..... Plaintiff
                                    Through:   Mr. B.S. Bagga and Mr. Pankaj
                                               Gupta, Advocates.
                                    versus

VIR SURINDER BERI & ORS                                          ..... Defendants
                   Through:                    Mr. Jatin Sehgal, Advocate for
                                               Defendant Nos. 1, 3, 4 and 5.
                                               Mr. Aditya Singh, Advocate for
                                               Defendant No. 2.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

1.

By this application the Defendant No. 1 seeks return of the Plaint and

dismissal of the suit under Order VII Rule 10 and 11 CPC on account of not

affixing the requisite court fees.

2. Learned counsel for the applicant/Defendant No. 1 contends that

during the lifetime of the parents itself a Memorandum of Understanding

dated 13th August, 1988 had been arrived at between the parties whereby the

properties were mutually divided between the Plaintiff, Defendant No. 5 and

Sukhdev Beri who is now represented through the legal heirs of Defendant

No. 2. By the present suit the plaintiff is seeking possession of property in

the garb of a partition suit. Further admittedly even as per the pleadings of

the Plaintiff, the Plaintiff is not in possession of the suit property and thus he

is required to pay ad-valorem court fee. Having pleaded ouster, the Plaintiff

cannot say baldly that the Plaintiff is in constructive possession of the suit

property. Reliance is placed on Harjit Kaur vs. Jagdeep Singh, 2005 (116)

DLT 392, Nisheet Bhalla vs Malind Raj Bhalla, AIR 2007 (Del) 60 and Saroj

Salkan vs. Sanjeev Singh and others, 2008 (155) DLT 300.

3. Learned counsel for the Plaintiff on the other hand contends that at

this stage only the pleadings in the plaint are required to be looked into. In

Para-6 of the plaint, it is clearly stated that the Plaintiff is in physical

possession of one room of the first floor which is marked „X‟. Further,

though the Plaintiff shifted to his own flat at Paschim Vihar and had put

Defendant No. 1 into the physical possession, he continued to retain the

constructive possession thereof as a co-owner of the suit property. The issue

relating to possession cannot be decided in an application under Order VII

Rule 11 CPC and is required to be decided after trial. Reliance is placed on

Krishna Gupta and another vs. Rajinder Nath and Co. HUF and others, 198

(2013) DLT 85.

4. I have heard learned counsel for the parties.

5. It is well settled that while deciding an application under Order VII

Rule 11 CPC the Court is required to only look into the averments made in

the plaint and is not required to examine the stand taken by the Defendants in

the written statement as the provision of Order VII Rule 11 CPC are in the

nature of demurer. Reference is made to Saleem Bhai and others vs. State of

Maharashtra and others, 2003 (1) SCC 557. The germane facts for deciding

an application under Order VII Rule 11 CPC are the averments in the plaint

and not the pleas taken in the written statement.

6. It is further well settled that in a suit for partition if joint possession is

pleaded by the Plaintiff alleging that he is a co-owner of the suit property

sought to be partitioned, fixed court fee is to be paid under Article 17 (vi) of

Schedule-II of the Court Fee Act, 1870 on the presumption of joint

possession of the Plaintiff even if the Plaintiff is not in the actual possession.

Further it is also not necessary that the Plaintiff should be getting a share of

some income from the property. This is for the reason that in the case of co-

sharers the possession of one owner is deemed to be the possession of other

unless a clear case of ouster is made out from the averments in the plaint.

7. The Plaintiff/non-applicant has filed the abovementioned suit seeking

partition in favour of the Plaintiff granting 1/3rd undivided share in the suit

Property No. 5166, Basant Road, New Delhi comprising of two floors. The

suit property was owned by Smt. Maya Devi, wife of Shri O.P. Beri, who

died intestate on 26th June, 1989 leaving the Plaintiff, her Husband Mr. O.P.

Beri and Defendant Nos. 1, 3 4 and 5 as legal heirs. Thereafter Mr. O.P.

Beri also passed away on 15th May, 1995. Thus his interest in the suit

property also devolved on the Plaintiff and Defendants. The Defendant Nos.

3, 4 and 5 are the sisters who have relinquished their share in the suit

property. Thus the Plaintiff, Defendant No. 1 and the legal heirs of

Defendant No. 2 late Shri Sukhdev Beri became entitle to 1/3rd share each.

The Plaintiff in the plaint claims that in the year 1989, he was in physical

possession of part of the portion of the premises however, he thereafter

shifted to his own flat at Paschim Vihar and put Defendant No. 1 into

physical possession retaining the constructive possession thereof as co-

owner. Subsequently, the Defendant No. 2 (b) put the Plaintiff in physical

possession of one room of the first floor marked „X‟. The relevant averments

in paras 5 and 6 for the purpose of possession are as under:

"5. That as on 1989 the portion shown in blue lines has been in possession of the plaintiff and the portion shown in green colour has been in physical possession of Defendant No. 2 and the portion in orange colour is in occupation of Defendant NO. 1. However, after that due to plaintiff shifting to his own flat at Paschim Vihar has

put defendant No. 1 into physical possession retaining the constructive possession thereof as a Co-owner of the same.

6. That as a result of this development recently taken place, the defendant No. 2 (b) has put the plaintiff in physical possession of one room on 1st Floor, which is marked „x‟. The remaining portion of First Floor still retained by the said defendant No. 2 (b) only. The defendant No. 1 be in the physical possession of entire ground floor."

8. In the plaint the Plaintiff has stated that he is in physical possession of

mark „X‟ in the suit property and constructive possession of part of the

premises. In view of this specific averment, at this stage on the basis of the

pleadings in the plaint as it is, it cannot be inferred that the Plaintiff has

claimed total ouster and is not in physical possession of the premises. The

legal position thus being that the possession of one of the co-owners is

deemed to be the possession of all the other co-owners, the Plaintiff is

justified in claiming constructive possession. Even in Saroj Salkan (supra)

relied upon by the learned counsel for the Defendant this Court held:

"13. It is settled law that in a suit for partition, the court fees to be paid if joint possession is pleaded by the plaintiff on the basis that he is the co-owner of the property sought to be partitioned, fixed court fees would be payable under Article 17

(vi) of Schedule II of the Court Fees Act presuming the joint possession of the plaintiff even if the plaintiff is not in actual possession. It is because of the reason that in the case of co- owners, the possession of one is in law possession of all, unless

from the averments in the plaint read as a whole, a clear case of ouster is made and in that situation the plaintiff is liable to pay ad-valorem court fee on the market value of this share as provided under Section 7 (iv) (b) of the Court Fee Act notwithstanding the fact that it is also pleaded that the plaintiff was in constructive possession."

9. The ouster claimed by the Plaintiff was not a total ouster. He now

claims to be put back in possession in part thereof. In view thereof the

prayer of the Defendant No. 1 seeking rejection of the plaint for affixing

insufficient court fees at this stage without trial is unsustainable.

Application is dismissed.

(MUKTA GUPTA) JUDGE AUGUST 26, 2013 'vn'