't-.VS MSi@i - IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR WRITPETJTLON (227) N0. j>2&&_S^ QF_2009 PETITIONER : DEFENDANTNO.l RESPQNDENTS PLAINTIFFS .»' v'fey .^i^ ^y c? Jl. ^: <?"J >./ ^ /''' Venudhar Behera, Son of Ishwar Chand Behera, aged about 78 years, Occupafion Advocate, Resident of Baikunthpur Ward, Near Sattigudi Chowk, Tahsil and District Raigarh (C.G.). VERSUS --^1 -A Smt. Tapaswani Widow of Late Bairagi Prasad, aged about 60 years; 1-B Shailendra Son of Late Bairagi Prasad, aged about 20 years; - 1-C Ku. Rajshri D/o Late Bairagi Prasad, about 22 years; 1-D Ku. Kalpana D/o Late Bairagi Prasad, aged about 10 years; Minor, through her legal guardian Smt. Tapaswani. Respondent No.l-A to 1-D are resident of Baikunthpur Ward, Goushala Para Road, Tahsil and District Raigarh (C.G.). 2-A Paramanand Behera Son of Late Shri Harishchandra Behera, aged about 70 years, Occupation Cultivation; 2-B Devanand Behera Son of Late Shri Harishchandra Behera, aged about 67 years; -2-C Jaimangal Behera Son of Late Shri Harishchandra Behera, aged about 63 years; ^- 2-D Chandramani Behera Son of Late Harishchandra Behera, aged about 53 years; Respondent No.2-A to 2-D are occupation Agriculturist and resident of Village Jaikabahal, Police Station Tamnar, Baiskirauda, Tahsil Gharghoda, District Raigarh (C.G.). Gaurishankar Son of Madhavchand Behera, aged about 74 years; Gourang Prasad Son of Madhavchand Behera, aged about 68 years; Narayan Behera Son of Madhavchand Behera, aged about 63 years; 6. 7. 8. Ganga Prasad Son of Madhavchand Behera, aged about 59 years; Respondent No.3 to 6 are resident of Baiskimuda, Police Station and Tahsil Lailunga, Post Mukdega, District Raigarh (C.G.). Nityanand Son of Ishwarchand Behera, aged about 69 years; Neelkanth Son of Ishwarchand Behera, aged about 62 years; Respondent No.7 and 8 are resident of Jhikabahal, Police Station and Tahsil Tamnar, Post Liliva, District Raigarh (C.G.). "s > 9. Mst. Pangudi Widow of Late Dasrashi Behera, aged about 77 years, Residerit of Karaipali, Police Station Chhal, Tahsil Dharamjaigarh, District Raigarh (C.G.). /10. Mst. Sahewani Widow of Late Brindawan Behera, aged about 75 years, Resident of Taranar, Tahsil Tamnar, District Raigarh (C.G.). WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA !fs^\a. .••..sa': fRIT PETiTIGN (2271 N0. 2232 OF 2009 B/ • : Venudhar Behera npci=Mn a« IV f RESPONDENTS/ Smt. Tapaswani and others. WRIT PETITION UNDER ART!CLE 227 OF THE CONSTiTUTION OF INDIA JSinaJe Bench: Hon'ble Shri N.K. Aaarwai. J.l •? •1-i Present : Shri H.S. Patel, counsel for the petitioner. Shri K.N. Nande, counsei forthe respondents. (Passed on 22nd day of March, 2011] With consent ofboththe parties, matter Is heard finally, 2. Order dated 13-05-1999 passed by Second Civil Judge, Ciass-i, Raigarh in Civll Suit No. 77-A/1996 is under assait in the instant petition filed under Articie 227 ofthe Constitution of india. 3., Brief facts of the case are as under: The respondents/plsintiffs instituted a suit against the petitioner herein for the relief of deciaration over the suit house eonstructed upon the land bearing Sheet No.31, plot No. 309 and area 5738 sq.ft. For the purpose ofjurisdiction of Court, the suit is vajued at Rs. 300/- only. The petitioner herein by niing his written statement assailed the maintainability of the suit on the jrounds: (i) ptaintiffs are not in joint possessson of the suit property, (ii) suit is not properiy valued for the purpose of jurisdlction of the Court, (iii) State is not impteaded as a party defendant and (iv) suit is time barred. 4. Learned Trial.Court framed four pretiminary issues as issue Nos.8,10,11 and 12 and vide impugned order has heid: (i) su.'t has been properly vaiued, (ii) State is not necessary pari:y, (ili) the suit without claiming consequentiai reiief is maintainab!e and (iv) is also within time. 5. ! have heard iearned counsei forfhe parties. M /' '"•-•s^^gts V:- €>c On going through the record, it appears that the piaintiffs have not valued the suit properly. The suit property being house constructed over more than 5000 Sq.ft. of land, the valuation put by the plaintiffs as Rs.300/- is totally arbitrary. Although the plaintiffe are free to value the suit but it should not besrbitrary. In view of the above, the trial Court was not correct in holding, suit is properly valued. Further, the plea of limitation raised by the petitioner herein in the facts and eircumstances ofthecaseis a mixed question of lawand factswhich has to be decided bythe tria! Court after considering the evidence which may be adduced by the parties, during tria!. So far as issues No. 10 and 11 are concemed, the petitioner herein has failed to demonstrate any illegality committed by the triat Court. As per piaint aliegations, the plaintiffs are in joint possession of the suit propsrty and therefore, consequential relief of possession is not necessary at this stage. If at ail, it is found the plaintiffs are not in joint possession of the sust property, the trial Court will decide the suit accordingly. In the same way the suit property being not agricultura! !and, impleadment ofState is not necessary, 6. For the reasons mentioned herein above, the decision of the trial Court on issues No: 8 & 12 being not in accordance wlth law, Is hereby set aside. The matter is remitted back for decision on issue No. 8 afresh aftsr affording opportunity of putting proper valuation of the suitfor the purpose of jurisdiction of the Court to the plalntiffs. So far as issue No. 12 is concsrned, it is directed that thesameshall be decidedafter recording evidence slons with all other issues. 7. Accordingly, Kvr Sd/- N.K.Agarwal Judge