Madhya Pradesh High Court
Ramchandra Banarsi vs Radhabai @ Devkabai on 2 January, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 2nd OF JANUARY, 2024
MISC. PETITION No. 3176 of 2023
BETWEEN:-
RAMCHANDRA BANARSI S/O DEVILAL BANARSI, AGED ABOUT 59
1. YEARS, OCCUPATION: AGRICULTURIST, R/O GRAM MALENDI, POST
KODARIA, MHOW, DISTRICT INDORE (MADHYA PRADESH)
SHAILENDRA BANARSI S/O RAMCHANDRA BANARASI, AGED ABOUT
2. 32 YEARS, OCCUPATION: AGRICULTURIST, R/O GRAM MALENDI,
POST KODARIA, MHOW, DIST. INDORE (MADHYA PRADESH)
JIYALAL BANARSI S/O DEVILAL BANARSI, AGED ABOUT 56 YEARS,
3. OCCUPATION: AGRICULTURIST GRAM MALENDI, POST KODARIA,
MHOW, DIST. INDORE (MADHYA PRADESH)
PRADEEP BANARSI S/O JIYALAL BANARSI, AGED ABOUT 22 YEARS,
4. OCCUPATION: AGRICULTURIST, R/O GRAM MALENDI, POST
KODARIA, MHOW, DIST. INDORE (MADHYA PRADESH)
MAYA BANARSI W/O JIYALAL BANARSI, AGED ABOUT 50 YEARS,
5. OCCUPATION: HOUSEWIFE, R/O GRAM MALENDI, POST KODARIA,
MHOW, DIST. INDORE (MADHYA PRADESH)
SHAKUNTLA BANARSI W/O RAMCHANDRA BANARSI, AGED ABOUT
6. 54 YEARS, OCCUPATION: HOUSEWIFE, R/O GRAM MALENDI, POST
KODARIA, MHOW, DIST. INDORE (MADHYA PRADESH)
SHEELA BANARSI W/O SHAILENDRA BANARSI, AGED ABOUT 28
7. YEARS, OCCUPATION: HOUSEWIFE, R/O GRAM MALENDI, POST
KODARIA, MHOW, DIST. INDORE (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI RISHI TIWARI, ADVOCATE.)
AND
1. RADHABAI @ DEVKABAI W/O KANHAIYALAL CHOUDHARY, AGED
ABOUT 52 YEARS, OCCUPATION: AGRICULTURIST AND HOUSEWIFE,
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 05-01-2024
17:22:32
-2-
R/O HOUSE NO.9 PENSIONPURA, MHOW, DISTRICT INDORE
(MADHYA PRADESH)
PARVATIBAI W/O POORAN SINGH, AGED ABOUT 66 YEARS,
2. OCCUPATION: HOUSEWIFE, R/O GRAM MALENDI, POST KODARIA,
MHOW, DIST. INDORE (MADHYA PRADESH)
MULIABAI W/O OMSINGH, AGED ABOUT 62 YEARS, OCCUPATION:
3. AGRICULTURIST, R/O GRAM KATKATKHEDI, POST KODARIYA,
MHOW, DIST. INDORE (MADHYA PRADESH)
SHANTIBAI W/O GAURI SHANKAR, AGED ABOUT 54 YEARS,
4. OCCUPATION: AGRICULTURIST, R/O GRAM KATKATKHEDI, POST
KODARIYA, MHOW, DIST. INDORE (MADHYA PRADESH)
THE STATE OF MADHYA PRADESH THROUGH COLLECTOR
5.
COLLECTOR OFFICE, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(NO.1 BY SHRI RISHIRAJ TRIVEDI, ADVOCATE.)
--------------------------------------------------------------------------------------------------------
This petition coming on for orders this day, the court passed the
following:
ORDER
Petitioners/defendant Nos.1, 2, 4, and 8 to 10 have filed this
present petition being aggrieved by the order dated 04.05.2022 whereby
the learned Civil Judge, Senior Division has rejected the application
filed under Order VII Rule 11 of CPC.
The facts of the case in short are as under:
02. Respondent No.1 being a plaintiff has filed a civil suit for
declaration, permanent injunction, partition, possession, and cost of the
suit, etc. against petitioners and respondent Nos.2 to 5. By way of the
aforesaid suit, the plaintiff is seeking the partition of agricultural land of
various Survey numbers and areas mentioned in paragraph No.3 of the
plaint. In paragraph No.12 of the plaint, the plaintiff valued the suit
Rs.10,000/- for the relief of declaration, Rs.10,000/- for the relief of
permanent injunction and Rs.2,160/- (Lagaan Rs.108 X 20) for partition
and possession, in total valued the suit Rs.22,160/- and paid the court
fees of Rs.840/-.
03. The petitioners appeared before the Civil Court and filed an
application under Order VII Rule 11 of CPC seeking rejection of the
plaint on the grounds of non-payment of improper valuation as well as
non-payment of ad-valorem court fees on the basis of the market value
of the suit land. The application was opposed by the plaintiff and vide
order dated 04.05.2022, the learned Civil Judge, Senior Division
dismissed the application. Hence, this present petition before this Court.
04. Shri Rishi Tiwari, learned counsel for the petitioners
submits that the Learned Court has failed to appreciate the provisions of
subsections (vi-a) of Section 7 of the Court Fees Act, 1870. Since the
plaintiff is out of possession of the property of which he claims to be a
coparcener or co-owner and such claim is denied, therefore, the value of
such share is liable to be ascertained on the basis of the market value of
the property not on the basis of the land revenue. In support of his
contention, Shri Tiwari learned counsel has placed reliance on a
judgment passed by the Co-ordinate Bench of this Court in the case of
Umar Farukh V/s Nabi Baksh and others in Misc. Petition No.734 of
2023 decided on 16.03.2023 in which it has been held that when the
relief of partition is also sought this Court has no hesitation to hold that
section 7 (vi-a) would be applicable in the facts and circumstances of
the case and merely because the land is agricultural land, it would not
fall under section 7(v) as has been wrongly held by the learned judge of
the trial Court.
06. Shri Rishiraj Trivedi, learned counsel for respondent No.1 /
plaintiff submits that this Court in case of Bhagwati V/s Chamar Rai in
Civil Revision No.1236 of 1979 decided on 13.02.1980 [1980 (II)
M.P.W.N. 22] had held that the legislative intention 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. 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 between these two
clauses. He has also placed reliance on a judgment passed by another
Co-ordinate Bench in the case of Basant Kumar V/s Ved Prakash
reported in 2014 SCC OnLine MP 2209 in which also the property in
question was an agricultural land which is an ancestral property of the
family and the petitioner was claiming the possession of the land based
on this right of the property. Relying on a law laid down in the case of
Bhagwati (supra) this Court has held that the claim is to be valued just
like a suit for possession simpliciter i.e. 20 times the land revenue.
07. Shri Trivedi learned counsel has also placed reliance on a
judgment passed in the case of Gorelal Lodhi and others V/s Ratanlal
Lodhi and others in Civil Revision No.176 of 2013 decided on
11.10.2013 and submits that the court fee is liable to be decided on the
basis of sections 7(v) and 7(vi-a) of the Court Fees Act as the plaintiff
has claimed the possession as well as the partition and admittedly the
land is agricultural. It is further submitted that this issue of valuation and
court fees is a blended question of facts and law which can be decided
after framing of issues not by way of application under Order VII Rule
11 hence, the present petition is liable to be dismissed.
Appreciation and conclusion
08. Admittedly, the plaintiff is claiming partition and possession
of all the agricultural lands. The court is liable to be paid under section
7(v) of the Court Fees Act in the suit for possession of the land, house,
and garden according to the value of the subject matter and further says
that such value shall be deemed to be the subject matter in the land. If
the suit land is agricultural land then the court fee shall be assessed on
the basis of land revenue or land revenue is payable in respect of such
land 20 times the land revenue so assessed or payable will be a value of
the subject matter. Likewise, in the suit for partition, the court fees
would be one-half of the value of the plaintiff's share. Section 7(v-a) of
the Court Fees Act, 1870 nowhere says that the value shall be decided
on the market value of the property.
09. The Suit Valuation Act, of 1887 prescribes the mode of the
determining the jurisdiction of the Court. Part 1 deals with the suit
relating to the land. Section 3 gives power to the State Government to
make rules for determining the value of the land for jurisdictional
purposes. Sub-section (1) says that the State Government makes rules
for determining the value of the land for jurisdiction in the suits
mentioned in the Court Fees Act, 1870 Section 7 paragraph No.(v), (vi)
& (x)(d). Section 4 of the Suit valuation Act of 1887 says that the
valuation of the relief in certain suits relating to land is not to exceed the
value of land. Section 8 says the Court-fee value and jurisdictional value
to be the same in certain suits wherein suits other than those referred to
in the Court Fee Act, 1870 section 7, paragraphs (v) (vi) and (ix) and
paragraph (x), clause (d), Court-fees are payable ad valorem under the
Court Fees Act, 1870 the value as determinable for the computation of
court fees and the value for purposes of jurisdiction shall be the same.
10. In a civil suit if a decree of partition of house/shop/garden is
being sought partition then the valuation would be certainly based on the
market of the suit property but as per Section 7(v) of Act of 1887, the court
fees is liable to be paid on the basis of 20 times of the land revenue for the
relief of possession. In case multiple reliefs are being claimed like
partition, possession, or declaration then the suit is required to be valued as
per Section 7(v), (vi), (vi) of the Court Fees Act of 1870 accordingly.
Where the relief of possession of land, house, and garden is sought then the
valuation would be as per Section 7(v) of Act of 1887 and coupled with the
aforesaid partition is also sought then for the purpose of partition the
provision of Section 7(vi-a) would apply. Section 7(vi-a) only says that
according to the value of such share and value of share and the value of
subject matter shall be decided as per Section 7(v). hence the learned civil
court rightly dismissed the application filed under O-7&R-11 of Civil
Procedure Code. In the case of Narayanprasad v. Jagdish, reported in
(2011) 2 MP LJ 116 this court had held as under :-
5. In the matter of Gujabai v. Salubai, AIR 1947 Nagpur 243,
it has been held that where in a suit the plaintiff, who is a co-
owner whose right as a co-owner is challenged and who is
excluded from possession, claims possession of his share of the
property as a co-owner and wants his share to be partitioned
off, though partition is claimed, it can still be regarded as a suit
in ejectment and, therefore, is primarily a suit which falls
under section 7(v). In the matter of Ganesha v. Radhelal, 1972
MPLJ Short Note 78, wherein in a suit for partition, possession
and mesne profits in respect of lands of the defendant's joint
family, the plaintiff's claim was decreed and the appeal
preferred by the defendants was dismissed inter alia on the
ground that Court fee ought to have been paid on the market
value, this Court held that defendants had paid Court fee on the
basis of 20 times the land revenue. It was further held that
since the decree did not in terms direct delivery of possession
of a portion of a Khasra number, but it directed demarcation of
¼th share of the plaintiff, therefore Court fee was payable only
on the basis of 20 times the land revenue and not on the market
value. In the matter of Ramkali Bai v. Babu Ram, 1975 MPLJ
Short Note 28, wherein plaintiff suing for joint possession of
agricultural land and defendants pleading construction of a
petrol pump and development of a garden, this Court held that
no Court fees need be paid on the market value of the
structures or the garden. In the matter of Ambaram v. Narbad,
1976 MPLJ Short Note 2, wherein the suit is for definite share
of land, this Court held that in case where plaintiff is not
claiming any particular piece of land but a definite share ¼th
or ⅓rd, in that case the value is to be determined on the land
revenue paid and not on the basis of market value. In the
matter of Rehmatulla Khan v. Aziz Khan, 1980 JLJ Short Note
36, wherein Lower Court held that suit being for cancellation
of will, must pay the Court fees accordingly, this Court held
that suit of the plaintiff was that his share be declared 1/12th
and be put in possession, hence section 7(iv)(c) attracted and
plaintiff can sue for possession without asking for a declaration
and cancellation. In the matter of Bhagwati v. Chamar Rai,
1980 (II) MPWN Note 22, wherein the suit was instituted for
partition and separate possession of ¼th share in the suit lands
which are separately assessed to land revenue, this Court held
that perusal of clause (vi-a) of section 7 shows 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
introduced to clarify that even in cases where possession of a
part of the land 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 to land revenue, its market value
would 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 agriculturist and the
owners of land revenue paying lands.
11. The Coordinate Bench of this Court while passing the
judgment in the case of Umar Farukh V/s Nabi Baksh and others in
Miscellaneous Petition No.734 of 2023 did not consider the judgment
passed in the case of Narayanprasad v. Jagdish (supra), Bhagwati
(supra), Basant Kumar (supra) and Gorelal (supra), hence not binding
on this court. In view of the law laid down by the Full Bench of this Court
in the case of Jabalpur Bus Operators Association V. State of M.P. and
others reported in 2003 (1) M.P.L.J. 531 the above judgment i.e.
Narayanprasad v. Jagdish(supra) is having binding precedent. The
judgment passed in the case of Umar Farukh V/s Nabi Baksh and
others in Misc. Petition No.734 of 2023 decided on 16.03.2023 will not
help the petitioner.
12. Even otherwise, Section 12 of the Court Fees Act,1870
gives authority to the civil Court to decide every question relating to the
valuation for the purpose of determining the amount of any fees
chargeable under this chapter of the plaint and memorandum of the
appeal and such decision shall be final between the parties. Sub-section
(2) of Section 12 says where any suit comes before a Court of appeal,
reference, or revision if such Court considers that the said question has
been wrongly decided, to the detriment of the revenue, it shall require
the party by whom such fee has been paid to pay so much additional fee
as would have been payable had the question been rightly decided, and
the provisions of section 10, paragraph (ii), shall apply. The appellate
Court shall determine again the question of valuation and if it is found
that the excess amount of court fees has been paid then the appellate
Court shall direct for a refund of the fee or vice versa, therefore, issue of
court fees and valuation is liable to be decided on the basis of the
evidence along with other issues and any decision on the said issue shall
be final and can be reexamined again if the judgment is brought before
the appellate Court.
13. In view of the above, the suit is not liable to be dismissed
for want of court fees and valuation. With the aforesaid, the
Miscellaneous Petition is dismissed.
(VIVEK RUSIA)
JUDGE
Divyansh
