Madhya Pradesh High Court

Maniraj vs Sambhu Sondhiya & Ors. on 28 March, 2022

Author: Anjuli Palo

                                    1
             IN THE HIGH COURT OF MADHYA PRADESH
                          AT JABALPUR
                                  BEFORE
                      HON'BLE SMT. JUSTICE ANJULI PALO
                          ON THE 28th OF MARCH, 2022

                       FIRST APPEAL No. 533 of 2005

        Between:-
        MANIRAJ, SON OF SAMBHU SONDHIYA AGED
        ABOUT 49 YEARS, OCCUPATION- SERVICE AND
        AGRICULTURIST, RESIDENT OF VILLAGE BARHA,
        P.S. BAIKUNTHPUR, TAHSIL SIRMOUR, DISTRICT
        REWA (MADHYA PRADESH)

                                                                   .....APPELLANT
        (BY SHRI DINESH KOUSHAL, ADVOCATE)

        AND

        1. SAMBHU SONDHIYA (DELETED AS PER COURT
        ORDER DT.29.2.2020)

        2.    SANTOSH KUMAR SON OF SAMBHU
        SONDHIYA, AGED ABOUT 36 YEARS, OCCUPATION
        AGRICULTURIST AND SERVICE

        3.    KRISHNA KUMAR SON OF SAMBHU
        SONDHIYA, AGED ABOUT 28 YEARS, OCCUPATION
        AGRICULTURIST AND SERVICE.
        [ALL RESIDENT OF VILLAGE BARHA P.S.
        BAIKUNTHPUR, TAHSIL SIRMOUR, DISTRICT
        REWA, M.P.]

        4 .  SMT.LALITA WIFE OF SHYAMLAL, AGED
        ABOUT 40 YEARS, OCCUPATION HOSEWIFE,
        RESIDENT   OF   VILLAGE   PATEHRA,  P.S.
        BAIKUNTHPUR,   TAHSIL SIRMOUR, DISTRICT
        REWA M.P.

        5. THE STATE OF MADHYA PRADESH
        THROUGH COLLECTOR REWA, M.P.

                                                                .....RESPONDENTS
        (NONE FOR THE RESPONDENTS NO.1 TO 3)
        (BY SHRI BHUPENDRA KUMAR SHUKLA, ADVOCATE FOR
        RESPONDENT NO.4)

      T h i s appeal coming on for final hearing at motion stage and
I.A.No.7072/2021 & I.A.10670/2018 this day, the court passed the following:
                                    JUDGMENT

This appeal under section 96 of the Code of Civil Procedure has been preferred by the appellant/plaintiff against the judgment and decree dated 17.2.2005 passed by the 8th Additional District Judge (Fast Track Court), Rewa in Civil Suit No.49-A/2004 whereby the trial court has dismissed the suit of the plaintiff on the

ground that appellant/plaintiff has not paid the proper court fees as per section VI A,B, of the Court Fees Act.

2 . The appellant/plaintiff filed a civil suit against the respondents/defendants seeking partition, declaration of title in respect of entire

suit lands shown in Parts 1, 2 & 3 of Annexure-A and Khasra No.197, area 0.66 acres shown in Annexure-C and possession of 1/4th share of rest of suit lands situated in villages Barha & Patehra, Tahsil Sirmour, District Rewa and separate possession of 1/4th share on partition and for declaring the partition deed dated 27.3.2003 and sale deeds dated 08.10.1999 & 12.6.2000 as null and void.

3 . The admitted facts of the case are that appellant/plaintiff and respondents No.2 & 3/defendants No.2 & 3 are real brothers and sons of appellant no.1/Shambhu Sondhiya. The appellant/plaintiff was working as Clerk in the Department of Forest and posted at North Forest Circle, Shahdol.

4. The case of the appellant/plaintiff before the trial Court was that he and respondents/defendants No.1 to 3 are members of joint family. Defendant No.1/father was 'Karta' of the family. The suit lands as shown in Parts 1, 2 & 3 of Annexure are the ancestral agricultural properties, over which they are in joint possession. In 1973, the plaintiff used to give his savings from his salary income to the defendant No.1 and thereby he purchased suit land bearing Khasra No.197, admeasuring 0.66 acres shown in Annexure-B enclosed with the plaint and became independent owner thereof. As the defendant No.1 was not having any source of income, therefore, he used to consume the entire earning savings so given by the plaintiff. In June, 2003 the defendant No.1 got registered a partition deed executed between defendants No.2 & 3 on 27.3.2002 in respect of suit lands as shown in Parts 1 & 2 of Annexure-A and Annexure-B. Then he got the information regarding sale of lands mentioned in Annexure-A vide sale deeds dated 08.10.1991 & 12.6.2000 to defendant No.4. In such partition the self acquired land of plaintiff bearing Khasra No.197 area 0.66 acres was also included. In the similar way the suit land mentioned in Part 3 of Annexure-B was sold by the defendant No.1 in favour of defendant No.4 vide registered sale deeds dated 08.10.1999 and 12.6.2000. The defendant No.4 got the suit lands mutated in his favour. The suit has been valued at Rs.1,11,788.80 Paise and court fees of Rs.500/- in respect of

declaration and Rs.35/- for possession after partition, has been affixed. Thereby the plaintiff claimed for declaring him as owner in possession of 1/4th share lands shown in Parts 1, 2 & 3 of Annexure-A and entire area of Khasra No.197 admeasuring 0.66 acres. The partition deed dated 27.3.2003 and sale deeds dated 08.10.1999 & 12.6.2000 be declared as null and void. The plaintiff also claimed partition and possession in respect of 1/4th share of suit lands shown in Parts 1, 2 & 3 of Annexure-A.

5 . The respondents/defendants No.1 to 4 filed their written statement

denying the plaint averments stating that there was mutual partition between plaintiff and defendants No.1 to 3 long ago. The suit lands shown in Parts 1, 2 & 3 of Annexure-A to the plaint are the self acquired properties of defendant No.1 out of his own agricultural earnings and lease of such lands is also in his name. The plaintiff has no right over the same and he had never given any part of his salary to defendant No.1. The defendant No.1 had spent amount in marriages of the appellant/plaintiff and defendants No.2 & 3 as also for treatment of his wife. He also spent Rs.35,000/- during visit at 'Gaya' & 'Baijnath Dham' for performing rituals of ancestors. For these above reasons, he had availed loan of Rs.1,25,000/-. The defendant No.1 had requested the plaintiff to repay the above loan amount, but he refused. The suit lands mentioned in Annexure-B were purchased by defendnat No.1 out of his own earnings and plaintiff being his elder son, the registry of said lands were done in his name. Mere on the basis of mutation, one cannot become owner of the property. While making settlement of disputed lands for defendants No.2 & 3, he had also taken care of his share also. With a view to make repayment of loan amount and to meet out the expenses for running the family, the possession of suit lands bearing Khasra Nos.68 & 76 has been given to defendant No.4 after execution of sale deed and mutation thereof has also been done. There is no proper valuation of the suit. Hence, the plaintiff is not entitled for desired reliefs and the suit is liable to be dismissed.

6. On the basis of pleadings of parties the trial Court framed inasmuch as 6 issues and held that it could not be proved that lands mentioned in Parts 1, 2 & 3 of Annexure-A enclosed with the plaint are the self acquired property of the

defendant No.1. It also could not be proved that Khasra No.197, area 0.66 acres mentioned in Annexure-B enclosed with the plaint is the self acquired property of the plaintiff. It has further not been proved that defendant No.1 had sold the lands bearing Khasra Nos.68 & 79 vide registered sale deeds dated 12.6.2000 & 08.10.1999 for repayment of the family loan amount. It is proved that the registered sale deed executed in favour of the defendant is null and void as the land belonged to joint Hindu family and there was no partition. While deciding Issue No.4 the trial Court held that defendant No.1 admitted in his cross-examination that he has not given any share of his ancestors land to the plaintiff. Thus, it was found proved that, plaintiff has one-fourth share in all the suit lands, but his possession over the same has not been proved. The trial Court also held while deciding Issue No.5 that plaintiff is entitled for possession over his one-fourth share after getting the suit lands partitioned. While deciding Issue No.6 the trial Court held that plaintiff has not complied with provision of sub-section (6)(a) of Section 7 of Court Fees Act and no proper court fee has been affixed. Thus, in the result dismissed the suit.

7 . In the instant appeal the appellant/plaintiff made challenge to the impugned judgment on the ground that plaintiff has paid proper court fee and thereby the suit of the plaintiff ought to have been decreed. The trial Court further erred in observing that plaintiff has not complied with section 7.6(a) & (b) of Court Fees Act so far as the plaintiff suit for partition and separate possession of land in dispute is concerned.

8 . In the impugned judgment the learned trial Court found that entire property involved in the present dispute belongs to joint Hindu family of the parties. The properties are not the self acquired properties of the parties. Such findings have not been challenged by the respondents. The suit has been dismissed only on the ground that no proper court fee has been affixed by the plaintiff, even though on 14.2.2005 opportunity was given to him to pay the court fees.

9. Learned counsel for the appellant has placed reliance on the decision in the case of Narayan Prasad Vs. Jagdish and others, 2011 (2) MPLJ 116. In paragraph 5 the Coordinate Bench of this Court following the principle laid down in Gujabai Vs. Salubai and others, AIR 1947 Nagpur 243, wherein it has been held in paragraphs 5 & 6 as under:-

" 5 . It is not disputed before me that the plaintiff has to pay court fee on the value of the subject matter of the suit that she is claiming. She admits that inasmuch as she is claiming a half share in the field property she ought to pay court fee on the value of the subject-matter of the suit, but what she disputes is the method of calculating the value of the subject-matter. It is argued on behalf of the plaintiff that she is entitled in such a case to value the subject- matter, not at the market value but at 7 times the revenue payable, while the contention of the defendant is that she ought to have value her field property at its market value and pay court-fee thereon. It was argued that because the case fell under S.7(iv)(b) and was a suit for enforcement of a right to share in property, the market value of the property ought to be the value on the basis of which court-fee ought to be paid.

6. Strictly speaking, if a case falls under Section 7(iv)(b) of t he Court-fees Act, court-fee has to be paid on such value as the plaintiff places on the property. It is true that it has been laid down in several cases that such valuation should not be arbitrary; but S.7(iv)(b) does not require court-fee to be paid on the market value of the property."

9. It was held that the suit has to be valued according to one-half of the value of the plaintiff's hare of the property. In the present case the plaintiff/appellant is claiming one-fourth share and its possession in the entire suit lands. The suit was valued for Rs.1,11,788/- and total court fee of Rs.535/- has been paid. It was also proved that he was out of possession of the properties.

10. In the case of Gorelal Lodhi and others Vs. Ratanlal Lodhi and others, ILR 2015 MP 1861 it has been held that a coparcener is at liberty and has a right to value the suit till the extent of his share and ratio out of the total twenty times of the land revenue and bound to pay court fee accordingly. Long before in the matter of Bhagwati vs. Chamar Rai reported in 1980 MPWN Vol.2 Note 22 such question was answered by this court, in which it was held as under:-

"A harmonious construction of paragraphs (v) and (vi) of section 7 will show that the legislature intended that the market value of a land revenue paying land for both the clauses will be the same, that is, twenty times the land revenue as provided under clause

(v). A different interpretation will create a conflict in these two clauses inasmuch as in a suit for possession simpliciter of land revenue, the plaintiff will be required to pay twenty times the land revenue, while in a suit for partition and separate possession, when plaintiff is out of possession, he will be required to pay Court-fees on the actual market value. ......"

11. In the case of Basant Kumar Vs. Ved Prakash and others, 2014 SCC OnLine MP 2209 reference has been made to decision in the case of Bhagwati v. Chamar Rai, 1980 (II) MPWN Note 22 and in paragraphs 10 & 11 it has been held as under:-

10........... In the matter of Bhagwati v. Chamar Rai, 1980 (II) MPWN Note 22, wherein the suit was instituted for partition and separate possession of 1/4th share in the suit lands which are separately assessed to land revenue, this Court held that perusal of clause (vi-a) section 7 sows that in a suit for partition, without claiming separate possession, the suit has to be valued according to one-half of the value of the plaintiffs share of the property. This is indicative of the facts that Court fees payable on such a suit is less than the Court fee payable when a suit is instituted for partition and separate possession on the ground that the plaintiff is out of possession. The Legislative intent is thus clear that when a plaintiff claims partition and separate possession on the ground that he is out of possession, the claim is to be valued just like a suit for possession simpliciter. In fact, when a co-owner files a suit for partition and separate possession, on the ground that he is out of possession, there is no difference between such a suit and a suit for possession based on title. the amendment to the Court Fees Act (Act No.4 of 1976) with effect from 1-3-1976 was separately assessed to land revenue was claimed, Court fees payable on such claim will be proportionately worked out for such part of the land. This clarification had become necessary to get over some judgment which had laid down that where the claim was for the entire land separately assessed of land revenue, its market value will be deemed to be twenty times the land revenue but if it was for a part of land and that part was not separately assessed, the claim will have to be valued on the actual market value. The intention was to provide relief to agricultural and the owners of land revenue paying lands.

11. In view of the aforesaid principles of law, it is clear that in the present case, the petitioner only claims his right to possession for his share to the property which is now jointly held along with his brothers and therefore it

is a suit which would fall under clause 7(v) and directing payment of court fee on the basis of suit for partition, an error has been committed by the Court below."

12. In view of aforesaid analysis and keeping in view the law laid down in aforesaid decisions, this Court is of the opinion that there is no illegality or perversity in the impugned judgment passed by the trial Court warrant interference of this Court. Accordingly, the appeal being sans merit stands dismissed.