AT BILASPUR WritPeu‘tiongc.) Ne§%&2007 w M i" /Govind Lal Agrawa1 ’g .ol. \‘\‘ ‘Wf‘ S/ 0 Late Kartlk . Shyamg$ askm ml Agrawal Aged about@ yrs Occupation Rice Mill Owner W R/o Bajaji Rice Min, k9?” PETITIONER : Defendant No. 1 Navagarh Road, Bemetara, ~ (5‘: Distt~Durg (C.G.) Q? VERSUS RESPONDENTS : RESPOMDEN7 NO L 2 Gopal Agrawal S/a Late Kartik Shyam Aged about 45 years Occupation —Agricu1ture, Girdhar Agrawal S/o Late Kartik Shyam Aged about 4O years Occupation Agriculture Both are Road, Khamharia DiStt—D‘urg (co) resident of Main DE FWH/Vfiva.2 Ghanshyam Prasad Agrawal S/o Late Kartik Shyam Aged about— 35 years Occupation Rice Mill Owner R/o Vinayak Rice Mill, Navagarh Road, Bemetara A Distt— Durg (C.G.) HIGH COURT OF CHHATTISGARH AT BILASPUR ’ble Shri Justice Prashant Kumar MishLa \\\ §inule Bench: Hon WP. gC} No. 5082 0f 2&8? \* " Govind Lal Agrawal. Versus N Gopal Agrawal and others. ORDER Post for 2’0— O4 -201 1 Sd//— Prashant Kumar Mishra Judge HIGH COURT OF CHHATTISGARH, B!LASP§R SINQLE EEECH : HOEQLE §HRI PRASaANT KUMAB MI§HEA, J. W.P. lC! No. 5082 of 2007 PEIITION§R Govind La! AgrawaL Versus RESPONDENTS Gopa! Agrawa! and others. Shri Goutam Bhaduri. counsel for the petitioner. Shri Shreekumar Agrawal, Senior Advocate with Shri Anand GuptaL counsel for respondents No. 1 to 4. Shri RR. Sinha, Panel Lawyer for the State/respandent No.5. ORDER ( goJO4I2011) This petition under Article 227 of the Constitution 0f lndia has been preferred by the defendant No.1 in the suit challenging the trial Courts order dated 23rd July, 2007 deciding preliminary issues No. 5 and 8 inter alia holding that the plaintiff has valued the suit property and adequate Court fees has been paid on the said valuation. (2) The plaintifisirespondent No.1 and 2 have preferred the suit for deciaration and permanent injunction to the effect that a partition has already taken piace‘ between the parties in the year 1994 and in the said partition the plaintiffs have been jointly allotted the lands described in Schedule ‘E' with the plaint and the plaintiffs are the owner of the said lands. A declaration has also been sought that after the partition affected l l in the year 1994 another partition has taken place between the parties in l lwhich iands in Schedule ‘F’ has been allotted to the plaintiffs and they are ithe owners of the said lands. {(3) According to the plaintiffs an oral partition was affected in the year i1994 wherein agricultural lands were allotted to the plaintiffs and the 1 in evidence. J f { f ‘ r ‘ (6) business of Rice Mm was aliotted to defendants No 1 & 2 There were some discrepanmes m the said partition therefore another partition was affected m 1997 and a memorandum of partition was executed on 18/05/1 997. (4) The present sutt for declaration Is with respect to agnculturat tends admeasurmg 25 83 acres Situated at vrflage Hathtewa whrch according to the ptarntrffs was purchased by therr father m the name of defendant No.1 to avoid ceiling proceedings. This land was jointly cultivated by the plaintiffs for about four years and both the plaintiffs divided their respective shares in the year 1998 wherein plaintiff No.1 got 13.92 acres and plaintiff No. 2 received 11.91 acres. (5) According to the defendant No. 1/petitioner the suit suffers from non-joinder of necessary party inasmuch as the sisters have not been made a party and that apart from the suit iands’an area of 4O acres is in the name of their father whrch is part of the iomt family property however the said property has not been included in the suit it is aiso mentioned m the written statement that Rice Mril is not the joint family property and has wrongly been included whereas lands at village Khamhariya, Gulalpur and Budhwara has been deliberately left out and as such the suit is maiafioe and has been fried to grab the property belonging to defendant No.1 as the same was purchased by him and is not the joint family property, it was further stated that the deed of partition is not admissible Preliminary issue No 5 & 8 were framed by the trial Court regarding vaiuatron and Court fees By the impugned order the said iprelrmrnary issues have been decrded in favour of plaintiff n D (7) Learned counsel for the petitioner has argued that the deed of partition dated 19/05/1997 is not admissible in evidence and that in effect the present is a suit for partition wherein the plaintiffs are required to pay advaiorem Court fee. however the piaintiffs have deiiberateiy and to avoid payment of Court fees. have tiied a suit for declaration and are trying to seek declaration of ownership with regard to the property belonging to defendant No.1 . On the other hand learned counsel for respondents No. 1 & 2 has supported the impugned order and submitted that no interference in this petition under Article 227 of the Constitution of india is called for. (8) Undisputedly the present is a suit for declaration and permanent injunction based on oral partition and thereafter by a written deed on 19l05/1997. Thus the present cannot be termed as a suit for partition requiring payment of advalorem Court fee. lf no partition would have ever taken place between the parties the contention of the petitioners would carry substance. in the written statement the petitioner has not stated that the partition dated 19/05l1997 is a forged document, however, the present petition is only confined to issue Nos. 5 & 8. (9) Learned counsel for the petitioner has argued that the deed of partition dated 19i05/1997 is not admissible in evidence and to avoid the as said situation the instant suit has been preferred for a declaration claiming ‘oral partition in 1994 and subsequent recording of memorandum of 5partition on 19/05/1997. The memorandum of partition dated 19/05/1997 ihas been filed as Annexure P/6 in this petition. in the said deed of partition i the fact regarding previous partition of 1994 has not been lmentioned. in the last paragraph of this deed it is mentioned that “this .partition is affected today on 19/05/1997 in the presence of Jagdish l i/ i Agrawal and Durga Prasad". Thus the question regarding admissibility of this document would fail for consideration as and when this document is produced and exhibited for proving the same as observed by the triai Court that the admissibility of this document shaH be decided Iater on. (1 0) Petitioner has relied on judgment of Delhi High Court in the matter of Smt. Chanderwati Vs. Lakhmi Chand and others reported in AIR 1988 Delhi 13 regarding requirement of registration of a deed affecting " partition. however this issue shall be examined by the trial Court as and when objection regarding admissibility of the deed of partition dated 19/05/1997 is raised. (1 1) ln the opinion of this Court, the suit, in its present form, has been valued properly and adequate Court fee has been paid. The instant petition under Article 227 of the Constitution of India thus fails and is hereby dismissed . l Sd//— ‘ Prashant Kumar Mishra Judge ‘