Jharkhand High Court
Mukund Mohan Ray vs Shib Narayan Singh Son Of Late Indra ... on 25 February, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 985 of 2022
1. Mukund Mohan Ray, aged about 75 years, son of Late Kanhaiya
Prasad Ray.
2. Dukh Mochan Ray, aged about 46 years, son of Late Ras Bihari Ray.
3. Banke Bihari Ray, aged about 63 years, son of Late Kanhaiya Prasad
Ray.
4. Braj Mohan Ray, aged about 61 years, son of Late Kanhaiya Prasad
Ray.
5. Anil Kumar Ray @ Anil Kumar Bharti, aged about 78 years, son of Late
Shital Prasad Ray.
6. Dilip Kumar Ray, aged about 73 years, son of Late Shital Prasad Ray
7. Pradeep Kumar Ray, aged about 57 years, son of Late Shital Prasad
Ray.
8. Sanjay Kumar Ray, aged about 52 years, son of Late Shital Prasad Ray.
9. Sulekha Devi, aged about 59 years, wife of Dinesh Prasad Singh,
daughter of Late Maheshwar Prasad Ray.
10. Hare Ram Ray, aged about 56 years, son of Late Maheshwar Prasad
Ray.
11. Siyaram Ray, aged about 51 years, son of Late Maheshwar Prasad
Ray.
Sl. Nos. 1 to 8, 10 and 11, all are residents of Village Ghorlash, P.O.
Ghorlash, P.S. Jasidih, District Deoghar, Jharkhand.
Sl. No. 9 is the resident of Village & P.O. Masnodih, P.S. Domchanch,
District Koderma, Jharkhand.
.......... Petitioners.
Versus
1.Shib Narayan Singh son of Late Indra Narayan Singh.
2. Sandeep Singh, son of Late Mohan Singh.
3. Babi Devi wife of Pradip Kumar Singh
4. Krishna Kant Singh @ Jhunjhun Singh, son of late Indra Narayan Singh
5. Ajit Prasad Singh, son of Late Indra Narayan Singh
6. Malti Devi wife of Nand Kishore Ray.
7. (i) Ram Sewak Ray, son of late Arun Kumar Ray
(ii). Pradeep Kumar Ray, son of Ram Sewak Ray and late Bhuko Devi
@ Manju Devi
(iii) Sudip Kumar Ray son of Ram Sewak Ray and late Bhuko Devi @
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Manju Devi
All O.P. Nos. 7 (i) to (iii) are residents of village Chongakhar, P.O. Karma,
P.S. Birni, District-Giridih, Jharkhand
8. Sunita Devi wife of Ashok Singh Choudhary, daughter of late Shashi
Mohan Ray
9. Uttam Prasad Ray @ Uttam Kumar Ray son of late Shashi Mohan Ray
10. Gautam Prasad Ray @ Gautam Kumar Ray son of late Shashi Mohan
Ray
11. Mahendra Prasad Ray son of Late Shankar Prasad Ray.
12. Narendra Prasad Ray, son of Late Shankar Prasad Ray.
13. Surendra Prasad Ray son of Late Shankar Prasad Ray.
14. Lalita Devi daughter of Late Shankar Prasad Ray, wife of Sri Ajay
Prasad Singh.
Sl. Nos. 1, 2, 4 and 5 are residents of Village Thakur Kajera, P.O.
Pattajoria, P.S. Jamtara, District Jamtara, Jharkhand.
Sl. No. 3 is resident of Village Dhakitanr Gardih, P.O. Gadi Nawadih, P.S.
Jamua, District Giridih, Jharkhand.
Sl. No. 6 is the resident of Village Kharna, P.O. Gaziadih, P.S. Sarath,
District Deoghar, Jharkhand.
Sl. No.8 is resident of Village Chirudih, P.O. Tantri, P.S.
Topchanchi, District Dhanbad, Jharkhand.
Sl. Nos. 9 to 13 are resident of Village Village Ghorlash, P.O. Ghorlash,
P.S. Jasidih, District Deoghar, Jharkhand.
Sl. No. 14 is the resident of Mokama, P.O. and P.S. Mokama, District
Patna, Bihar.
....... Opposite Parties
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioners : Mr. Arvind Kr. Choudhary, Advocate
For the O.P. Nos. 9 to 13 : Mr. Onkar Nath Tewary, Advocate
Mr. S. Raza, Advocate
13/Dated: 25/02/2025
Notice upon the opposite parties have been effected. Mr. Onkar Nath
Tewary, learned counsel has appeared on behalf of O.P. Nos. 9 to 13. However,
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nobody has appeared on behalf of the rest of the opposite parties and to provide
one more opportunity to the rest of the opposite parties the matter was
adjourned on 10.01.2025 and today again on repeated calls nobody appeared on
behalf of the rest of the opposite parties accordingly, this matter is being heard in
absence of rest of the opposite parties.
2. Heard Mr. Arvind Kr. Choudhary, learned counsel for the petitioners
and Mr. Onkar Nath Tewary, learned counsel for the O.P. Nos. 9 to 13.
3. This petition has been filed under Article 227 of Constitution of
India for setting aside order dated 04.11.2022 passed by the learned Civil Judge
(Senior Divisioin)-V, Deoghar in M.C.A. No. 268 of 2022 arising out of Original Suit
No. 162 of 2017 whereby the learned Civil Judge has been pleased to allow the
petition filed by the defendant directing the plaintiffs to deposit ad valorem stamp
as per the valuation of the suit property.
4. Learned counsel for the petitioners submits that the plaintiffs
have instituted Original Suit No. 162 of 2017 for preliminary decree declaring the
share and interest of the plaintiffs to the extent of 4/5th share in the suit property
and for delivery of possession and for appointment of survey knowing
commissioner. He further submits that upon notice the defendants/opposite parties
appeared and filed their written statement and the matter was sent to mediation
before the mediator however, it was not materialized. He then submits that the
defendant no. 10 i.e. father of the respondent Nos. 8 to 10 filed an application
under Order VII Rule 11 read with Section 151 C.P.C which was registered as
M.C.A. No. 268 of 2022 praying therein to direct the plaintiffs to file ad valorem
court fee stamp on the exact valuation of the suit property. He further submits that
the said petition was allowed by the learned court and direction has been issued
to correct the value of the property and to pay ad valorem court fee as per the
current valuation of the suit property. He submits that the suit is meant for
partition and there is fixed court fee prescribed @ Rs. 250/- at the time of
institution and further it has been enhanced @ 1,000/-. He submits that the
learned court without appreciating the facts, has passed the order and no reason
has been assigned to come to that conclusion. On these grounds, he submits that
the impugned order may kindly be set aside.
5. Mr. Onkar Nath Tewary, learned counsel for the O.P. Nos. 9 to 13
opposes the prayer and submits that value of the suit property was to the tune of
Rs. 3,34,15,800/- however the property was valued to the tune of Rs. 5,00,000/-
only. He submits that the suit property was not properly disclosed in view of that
the learned court has rightly passed the order. He submits that once a petition is
filed for paying ad valorem court fee the Court is competent to examine the
valuation and revise it. He relied in the case of " Smt. Tara Devi Vs. Sri Thakur
Radha Krishna Maharaj and Another" reported in 1987 (0) Supreme (SC)
626. On these grounds, he submits that there is no illegality in the order. He
submits that under the guise of partition suit the intent of prayer is declaratory
and in view of that the learned court has rightly passed the said order.
6. The plaint is annexed with the supplementary affidavit. Relief has
been sought for preliminary decree declaring the share and interest of the
plaintiffs to the extent of 4/5th share in the suit property and for delivery of
possession over the separately allotted share to the plaintiffs and for appointment
of survey knowing commissioner. Thus, prima facie it transpires that the suit was
instituted for partition. The judgment relied by the learned counsel for the O.P.
Nos. 9 to 13 in the case of Smt. Tara Devi (supra) the Hon'ble Supreme Court
has considered section 7 (iv) (c) of the Court-fees Act, 1870 wherein it has been
held that the plaintiff is free to make his own estimation for the purposes of
valuation and jurisdiction and it is only in cases wherein the 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.
7. From the impugned order it does not transpire how the learned court
came to that conclusion that wherein it was disclosed that suit property was
purchased by way of registered sale deed to the tune of Rs. 5,00,000/-. Reference
may be made to the case of " Agra Diacesan Trust Association Vs. Anil
David and others" reported in AIR 2020 (SC)1372 wherein para 16, 17 and
18 it has been held as under:-
"16. The plaintiff/petitioners' contention was and continues to be that the
value determinable is in terms of clause (v) of Section 7, by reason of Section
7 (iv-A). Section 7 (v) (i) contains two clauses- (a) and (b): both are in respect of
revenue paying lands. The petitioner valued its suits on the basis of revenue
which according to it, was payable. While so stating, the value (for purposes of
court fee) was determined to be ₹ 3000/- in each of the suits.
17. A plain reading of the impugned judgment reveals that what weighed heavily
with the High Court was the fact that the plaintiff valued the suits differently for
the purposes of court fees and jurisdiction, and secondly that:
"no other market value has been proved by the petitioners/plaintiff that the
settled revenue of the land is Rs. 3,000/- and in the absence of any evidence in
this regard, the trial court has rightly considered the market value of the property
in dispute in accordance with the market value fixed by the Collector in order to
charge the stamp duty, which is the correct market value." In the opinion of this
court, there was no compulsion for the plaintiff to, at the stage of filing the suit,
prove or establish the claim that the suit lands were revenue paying and the
details of such revenue paid. Once it is conceded that the value of the land [per
explanation to Section 7 (iv-A)] is to be determined according to either sub
clauses (v), (va) or (vb) of the Act, this meant that the concept of "market value"
- a wider concept in other contexts, was deemed to be referrable to one or other
modes of determining the value under sub clauses (v), (va) or (vb) of Section
7 (iv-A). This aspect was lost sight of by the High Court, in the facts of this case.
The reasoning and conclusions of the High Court, are therefore, not sustainable.
18. In view of the above discussion, the impugned judgment and order, and that
of the trial court, cannot stand. Consequently, the question of what is the market
value, based on the revenue payable, would be an issue to be tried in the suit.
Resultantly, the appeals succeed and are allowed without any order on costs."
8. Coming to the facts of the present case it transpires that the
petitioners valued its suit on the basis of sale deed and on that basis of that
fixed court fee was paid as the suit was said to be partition suit and the contention
has been made that market value of the suit property can be added, which can be
an issue to be tried in the suit.
9. In view of above discussions and further considering that there is no
determination by the impugned order on the point of ad valorem court fees, that
order cannot sustain. Accordingly, the impugned order dated 04.11.2022 is set
aside and consequently, what is the market value on the revenue payable
would be an issue to be tried in the suit. Accordingly, this petition is allowed and
disposed of. Pending I.A, if any, stands disposed of.
( Sanjay Kumar Dwivedi, J.)
Satyarthi/A.F.R.
