Rajasthan High Court - Jodhpur

Kamal Kishore vs Loon Karan on 17 August, 2022

Bench: Vijay Bishnoi

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 9744/2022

1. Kamal Kishore S/o Ramswaroop, Aged About 52 Years, 18/147, Chopasani Housing Board, Tehsil And District Jodhpur.

2. Suresh Kumar, Aged About 55 Years, 18/147, Chopasani Housing Board, Tehsil And District Jodhpur.

3. Shanti Devi W/o Ramswaroop, Aged About 70 Years, 18/147, Chopasani Housing Board, Tehsil And District Jodhpur.

----Petitioners Versus

1. Loon Karan S/o Amrit Lal, Aged About 65 Years, B 4 A/14, Ground Floor, Near Gita Mandir, Rana Pratap Bagh, Delhi.

2. Lalit S/o Amrit Lal, Aged About 60 Years, B 4 A/14, Ground Floor, Near Gita Mandir, Rana Pratap Bagh, Delhi.

3. Dinesh Kumar S/o Amrit Lal, Aged About 55 Years, B 4 A/14, Ground Floor, Near Gita Mandir, Rana Pratap Bagh, Delhi.

4. Vinod S/o Ratan Lal, Aged About 34 Years, B 4 A/14, Ground Floor, Near Gita Mandir, Rana Pratap Bagh, Delhi.

5. Sawai Ram S/o Ratan Lal, Aged About 44 Years, B 4 A/14, Ground Floor, Near Gita Mandir, Rana Pratap Bagh, Delhi.

6. Gayatri W/o Ratan Lal, Aged About 75 Years, B 4 A/14, Ground Floor, Near Gita Mandir, Rana Pratap Bagh, Delhi.

                                                                ----Respondents



For Petitioner(s)        :     Mr Sanjay Nahar
                               Mr Pushkar Taimni
For Respondent(s)        :     Mr O.P.Mehta
                               Mr Sanjay Gupta





                                          (2 of 7)                     [CW-9744/2022]


            HON'BLE MR. JUSTICE VIJAY BISHNOI

                         Judgment / Order

17/08/2022

This writ petition is filed by the petitioner-plaintiffs

challenging the order dated 04.05.2022 passed by Additional

District Judge No.1, Barmer (for short 'the trial court' hereinafter)

in case No.41/2021, whereby the application filed by the plaintiffs

under Order 6 Rule 17 read with Section 151 CPC for amendment

of the plaint has been allowed and the application filed by

respondent-defendants under Section 11 of the Rajasthan Court

Fees and Suit Valuation Act, 1961 (hereinafter to be referred as

'the Act of 1961') has been partly allowed and it has been held

that the petitioner-plaintiffs though pleaded in their plaint that the

property in question is ancestral but not pleaded that they are in

possession of the property, therefore, they are required to pay

court fees as per the provisions of Section 35(1) of the Act of

1961 on the market value of the property. The trial court has

further directed the petitioner-plaintiffs to pay proper court fees

on market value of the property within two months.

Brief facts of the case are that the petitioner-plaintiffs

filed a suit for partition in relation to a property situated at

Mohalla Railway Station, Barmer claiming as ancestral. It was

averred that the said property was received by Amrit Lal, Ratan

Lal and Ramswaroop through their father viz. Akheraj. Respondent

Nos. 1 and 2 in the writ petition have released their share in the

above mentioned property in favour of respondent No.3 of the

writ petition, however, instead of releasing 1/3rd share, they

illegally released the complete property in favour of him.

(3 of 7) [CW-9744/2022]

It is contended that shops and a house constructed on

the property was being rented out to one M/s Bhagwati Electricals

without seeking permission of the petitioners and later on except

one shop, the complete structure built on the plot was demolished

by the respondents without informing the petitioners. It is also

averred that the respondents have attempted to change the

nature of property in question and the request of the petitioners to

partition the property was denied by the respondents.

The petitioners have averred in the plaint that the

property in question is valued at rupees one crore and based on

that court fees of Rs.200/- has been furnished. The petitioners

have prayed that a decree partition of the property be issued and

also sought for injunction to the effect that the respondent Nos.1

to 3 should not further sell the property as well as change the

nature of the property. It was also prayed that the released deed

executed by the respondent Nos.1 and 2 in favour of respondent

No.3 shall be declared as null and void.

The respondents herein filed an application under

Section 11 of the Act of 1961 contending that the petitioners have

filed a suit for declaration of the release deed as null and void and

further prayed for injunction against the respondents but proper

court fees of this effect have not been furnished. It was prayed

that the petitioners be directed to pay proper court fees or else,

the suit be dismissed.

At this stage, the petitioners filed an application under

Order 6 Rule 17 CPC with a prayer to allow them to amend the

plaint and delete the paragraphs 12(2) i.e. the prayer for

declaration of release deed as null and void. The case of the

(4 of 7) [CW-9744/2022]

petitioners was that the release deed is void ab initio, hence, there

is no need to get it declared 'null and void'.

The learned trial court after hearing the parties has

allowed the application filed by the petitioners under Order 6 Rule

17 CPC and also deleted the paragraph 12(2) of the plaint,

however, partly allowed the application under Section 11 of the

Act of 1961 filed on behalf of the respondents and directed the

petitioners to pay court fees on the market value of the property

within two months.

Assailing the order dated 04.05.2022, learned counsel

for the petitioners has argued that the trial court has failed to

appreciate that the petitioners have nowhere specifically pleaded

that they had been excluded from the possession in their plaint.

The finding of the trial court that as the petitioners have not

claimed to be in joint possession of the property in question, it

would mean that the petitioners are excluded from the possession,

is perverse and cannot be sustained.

Learned counsel for the petitioners has submitted that

for the purpose of valuation of court fees, the court is required to

look into the plaint only and from the wholesome reading of the

plaint filed by the petitioners, it cannot be said that the petitioners

have ever pleaded that they are excluded from possession of the

property in question.

In support of the above contentions, learned counsel

for the petitioners has placed reliance on a decision of Hon'ble

Supreme Court rendered in Neelavathi and Ors. vs.

N.Natarajan and Ors., reported in AIR 1980 SC 691 and

argued that the impugned order passed by the trial court up to the

(5 of 7) [CW-9744/2022]

extent of direction to pay court fees on the market value within

two months be set aside.

Per contra, learned counsel appearing for the

respondents has vehemently opposed the writ petition and argued

that the trial court has not committed any illegality in passing the

impugned order as the petitioners have failed to plead in their

plaint that they are in possession of the property. It is also

submitted that from bare reading of the plaint it is clear that the

petitioners have not claimed joint possession in the property in

question, which means that indirectly they have admitted that

they have been excluded from the property.

In support of the above contentions, learned counsel

for the respondents has placed reliance on decisions of Himachal

Pradesh High Court as well as of Kerala High Court respectively in

Hushan Kaushal and Ors. vs. Bal Raj and Ors., reported in

AIR 2002 Himachal Pradesh 94 and in Kanjiroli Abdul

Razack vs. Velikkal Anjaneyan and Ors., reported in AIR

2003 Kerala 4.

Heard learned counsel for the parties and perused the

material available on record.

The Hon'ble Supreme Court in the case of Neelavathi

& Ors. (supra) while taking into consideration the provisions of

Section 37 of the Act of 1961, which is para material to Section 35

of the Act of 1961, has observed as under :-

"The general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the

(6 of 7) [CW-9744/2022]

property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court fee under Sec. 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been "excluded" from joint possession to which they are entitled to in law. The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiff had been excluded from possession."

[Emphasis supplied]

From perusal of the averments raised by the

petitioner-plaintiffs in their plaint, it is clear that though they have

claimed to be in joint ownership of the property in question but

have not made a specific and categorical averment claiming to be

in joint possession of the property in question, however, at the

same time they have also not averred in the plaint that they have

been excluded from the possession of the property in question.

In such circumstances, it cannot be presumed that

there is an admission on the part of the petitioner-plaintiffs that

they have been excluded from the possession of the property in

question.

In view of the above, I am of the opinion that the

observations made by the trial court to the effect that the plaint

filed by the petitioner-plaintiffs falls under Section 35(i) of the Act

of 1961 cannot be sustained, however, at the same time, it is to

(7 of 7) [CW-9744/2022]

be noticed that the petitioner-plaintiffs have prayed for relief of

permanent injunction against the respondent Nos.1 and 3 in

respect of the property in question to the effect that they should