&KSS p Qts1i.wu.z Biicsy '.^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR [CHHATTISGARH1 MISCELLANEOUS APPEAL N0. /2006 APPELLANTS J9efendants A^ l^y/ A^S^ RESPONDENTS Plaintiff 1. 2. 3. 4. Raki Kesh Agrawal, S/o. Late Shree Ram Agrawal, age 50 years. Vijay Kumar Agrawal, S/o. Late Shree Ram Agrawal, age 48 years. Bipin Kumar Agrawal, S/o. Late Shree Ram Agrawal, age 35 years. Praveen Kumar Agrawal, S/o. Late Shree Ram Agra^al, age 30 years. 5. /o^ Naveen Kuinar Agrawal, S/o. Late Shree Ram Agrawal, age 26 years. ^-11-HU! Afft«A<l.^.<»-~-;^t) ^;||<t-^&. /S^^At.' VERSUS ~rc<-t-r S.i'-^p'w •6^'s.H- ^'^y^l 1. Jagdish Rai Agrawal, S/o. Ayodhya Prasad Agrawal, (since .died^fhrough legal heir. ^ a) Bharpo DeviAgrawal, W/o. S, Jagdish Rai Agrawal, aged about 65 years. R/o. Batoli, Thana-Batoli, Tahsil-Sitapur, Distt. Surguja (C.G.). Ram Niwas Agrawal, S/o. Jagdish Rai Agrawal, aged about 58 years, R/o. Mo'del Town, In front of Electricity Board Office, Hapi, Distt. Hissar (Haryana). 8—c) Vishnu Agrawal, S/o. ^, Jagdish Rai Agrawal, aged about 48 years. ^ b) ^>. ^ Respondents Defendants ^- d) ^- %- e) ^ 2. •& ^ 3" /-' °•4- ^' --^- 5. ^ .S.7- y 8. y s 8(a) Pawan Agrawal, Jagdish Rai Agrawal, aged about 46 years. Respondent No. lc) and Id) are R/o. BatoU, Thana- Batoli, Tahsil-Sitapur, Distt. Surguja (C.G.). Smt. Nararata Agrawal, W/o. Girdhari Lal Agrawal, aged about 41 years, R/o. C/o. Sharda Cables, Nearby Pratap Talkies Chowk, Bilaspur (C.G.). Nand Kumar Gupta, S/o. Late Paras Nath Gupta, aged about 30 years. "^Parmanand Gupta, S/o. Bhagirathi Gupta, aged 24 years. ^oshan Lal Gupta, S/o. Bhagirathi Gupta, aged 31 years. Smt. Kamla Devi, W/o. Bhola Prasad Gupta, aged about 40 years. / Bhola Prasad Gupta, S/o. Kundan Sao, aged about 47 years. Amamath S/o. Banwarilal Agrawal aged about 40 years. Smt. Santara Bai, W/o. Kali Ram Agrawal, aged about 45 years. Kali Ram S/o. unknown, aged about 65 years. <^ 8(^) Radhey Shyam, S/o. Kali Ram aged about 33 years. ^ > 8(c) s^d> ^'8(e) >^ <L7 8(g)x ^ 9. s> 1-°' ^' ^l 1,- y^ Praveen S/o. Kali Ram, aged about 35 years. Respondent no. 2 to 8 and 8(a) to 8(c) are resident of Village Batoli, Tahasil- Sitapur, Distt. Surguja (C.G.). Binod S/o. Kali Ram aged about 30 years. Amit S/o. Kali Ram aged about 30 years. Respondent No. 8(d) and 8(e) are resident of Amit Traders, New Bus Stand, Nearby Poonam Lodge, Ambikapur, Thana SE Tahasil-Ambikapur, Distt.Surguja (C.G.). Smt. Amita Agrawal, W/o. Subhas Bhaiya, R/o. Thana Road, Surajpur, Distt. Surguja (C.G.). Smt. Kaushilya Devi, W/o. Ram Bilas Agrawal, R/o. Ashok Readymade, Surajpur, Thana 8s Tahasil-Surajpur, Distt. Surguja (C.G.). Ram Awatar Soni, S/o. Dukhi Soni, aged about 35 years. Smt. Madhuri Gupta, W/o. Devendra Gupta, aged about 28 years. Rajendra Prasad Gupta, S/o. Bandhu Sao, aged about 26 years. ^ 12. -s 13' ^" a> 14. 5 15, ^' Vishnu Kumar Gupta, S/o. Ganga Prasad Gupta, aged about 28 years. Prahlad Prasad Gupta, S/o. Nanka Sao, aged about 38 years. Mahavir Agrawal, S/o. Late Ram Bhagat, aged about 45 years, Respondent no. 9 to 14 are resident ofVillage Batoli, Thana Batoli, Distt. Surguja (C.G.). State of Chhattisgarh Through.Collector, Surguja (C.G.). ; ^^' u APPEAL UNDER ORDER 43 RULE l(A)£DFTHE CODE OF 3m XI-HC-78 sn^r^rf^iN; TOT3II^Tsh1 HWyfTa^l'b 3^'^ipn^CT, siTOwis, Ridi+iy !.\.^..^&.^S.I. ^ 200^ 3ii^,fi Ma«n('ic|i4'!l<i.liT) e^IIW?rf?(T-»TI^T learihed behb Shri Sunil Tripathi, learn| Shri N.K.Agravra!, Gupta, Advocate for the respor No one appears on served. Shri Akhil Agrawai No.15. Heard on I.A.No.1108/3C permission to implead the lej Jagdish Rai Agravvai. Learned| the legai representatives of tl-(s on record. Not opposed. I.A.No.1108/2006isalloti As per report of the Santara Bai has also died. that the legal representatives record and prays for deletion titte. Not opposed. Prayer is allowed. Heard. Brief facts are that on4 Suit No.140-A/2003 for partiti|3n that the defendant No.1 to 6 ^d counsel for the appellants. Senior Counsei with Shri Deepak )ident No.1(a)to (e). Ifofthe respondent No.2 to 14, though <:tiMT<i4l-i iii<-il'¥felifl{RI'WK ^isri^iTgn^T P^nei Lawyer for the State/respondent |006 which is an application for seeking jai representatives of respondent No.1 oounsel for the appellants submits that e respondent No.1 are already brought iived. Leirned |)rocess server, respondent No.8 Smt. counsel for the appellants submits |of the respondent No.8 are alresdy on bf name of Santara Bai from the cause Jagdish Rai Agrawal instituted a Civii of the joint family property pleading had.'by piaying fraud executed a sale P.T.O. Cav^^,, Q.. XI-HC-78 *<i*^<ii a»+iicb 3^?i(raT?PT, siTliu'ls, fslcllti^ __ H.A.^o,4o'S/' " fV^ 2QO{, v 3ll^i'l Msich (li<:li^'sl<^) 3[i^rq>r)?^N; craian^Tgiw CTtITWg{?cT3T^T L- ct>i<i[n<fl-i HitKiT^'fW'rfsReK ^>3ri^IT3T(^T deed of a part of the joint pr plaint io the respondents No.; after partition ofthe suit prope The plaintiff valued the suit t'ne suit lands in Schedule-A the properties mentioned in defendants No. 1 to 6. The defendants filed 'A that a partition had already properties mentioned in Sc respondent/defendant No.1 td filing the suit for partition. It barred by limitation. itwas al; paid ad volorem Court fees c| situated on the suit lands. The learned fifth Civi manv as 13 issues. Issue Nd vi/hereas the issue No.10 &| limitation. The learned fift'n arguments and decided issu^ basis of averments made it finding that the plaintiffs w^ partition and also recorded iimitation. It also recorded a| valued the suit under Seotior the sale deeds executed fcl' ifiperties mentioned in Schedule-B of the to 13. Relief of possession of his share jrty mentioned in Schedule-A was prayed. |t 20 times of the iand revenue payable, |being agricultural lands and prayed that |Schedule-B be put to the share of the itten statement and contended inter alia |aken place on 01-07-1976 in whic'n the Ihedule-A had fallen to the s'nare of 6. The plaintiffs were thus estopped from was also pleaded that the suit was also ;o pleaded that the piaintiff ought to have the market value of the super structure Judge Ciass-11, Ambikapur framed as .9 and 11 related to valuation of the suit 12 related to question of estoppei and ivii Judge Class-11, Ambikapur heard s No.9 to 12 as preliminary issues on the the written statement and recorded a re estopped for challenging the earlier a finding that the suit was barred by finding that the plaintiffs oughi to have •7 of the Court Fees Act on the vaiue of the defendant No.1 to 6. On these P.T.O. C&v-4d.... 2 XI-HC-78 3^-qFfRTO, SiTfltl'IS, iqflWy .. M,A-No.^os7 *TTH<tT§b*11^ • Wj; 200 ^ an^r'ftra? (^qI^cK^eT) a^rqir^-iN; tWran^Tstitii* STOTWsfersn^T 12> ctii<i[fi<niiiiiiT ft fsc& <Riwi< ^•Slf^ITSn^T premises, the learned fifth Civi! Jud^' the suit. Aggrieved by t'ne order dated| N0.140-A/2003, the plaintiffe prefeijred before the Ist Additional District Juc) Additional District Judge, Ambikapur No.9 to 12 ought to have been decid therefore remanded the matter to th4 with a direction to decide issues No.91 t'nese issues. Being aggrieved by the| io 5 have preferred this Miscellaneou^ e Class-11, Ambikapur dismissed 19.04.2005 passed in Civil Suit Civil Appeal N0.18-A/2005 Ige, Ambikapur. The learned Ist 'recorded a finding that the issue led after recording evidenoe and Civil Judge Class-i], Ambikapur to 12 after recording evidence on said order, the defendants No.1 Appeal. artd At the very outset the orders p| as also the First Appellate Court are L| the issues No.10 & 12 are concernea'l ofthe averments made in the written had taken place on 01.07.1976 limitation. ]n my considered opinion, t] as preliminary issues since they fact. The issue of estoppel as also a^ therefore be disposed ofas prelimina] decided after recording evidence 01) disposal. ^ssed by the learned iower Court ulnsustainable under law. So far as these issues arose on the basis ^tatement that an earlier partition that the suit was barred by liese issues coula' not be decided cont^ined mixed question of law and t the issue of [imitation could not (y issues and ought to have been all issues at the time of final So far as the issues No.9 & related to valuation ofthe suit. Sectiorl 11 are concerned, these issues 7 (vi-a) reads as under: . P-T-0- Ci^-U-.. XI-HC-78 sn^rwfN^ (RIT sn^r giiri< HIHf(TSt>*1|cb 3^-qrara?, siTflu'ie, Isicil^y !^...<f\. |Jo, 4&^ 92 Wj; 200 sTi^r <raw (llcil4°i<^T) S^tTRKnfStTSn^T 7. Computation of fee^ (vi-a) "In suits for oartitson ^ payable in certein suits: (a) according to one-h; the property; and (b) aocording to the fUi presenting the plair property of v'/hich hs and his claim to be| is denied. A perusal of clause (v| partition, without claiming se valued according to one-half property. This is indicative of a suit is less than the Court partition and separate posse^ of possession. The legislativ^ claims partition and separate| of possession, the clalm is tcj simpliciter. When a oo-own^ possession, on the ground t[ difference between such a sUi t*rt<^t-U. shall be valued according to plaintiff and not on the value (|i suit land. Valuation ofthe full calcuiated under Section-7(v)| <n[<<fci41'i iiinTtfte^t'dSReK ^sri^ITSD^T lif of the value of the plaintiff's share of value of suoh share if on the date of t the plaintiff is out of possession of the claims to be a co-parcener or co-owner, a oo-parcener or co-owner on such date -a) of Section-7 shows that in a suit for Iparate possession, the suit has to be |3f the value of the plaintiffs share of the [he fact^ that Court fees payable on such fees payable when a suit is instituted for >ion on the ground that the plaintiff is out intent is thus clear that w'nen a plaintiff possession on the ground that he is out be valued just like a suit for possession fiies a suit for partition and separate iat he is out of possession, there is no and a suit for possession based on title ihe full value ofthe share claimed by the :the superstructure situated on the entire /aiue ofthe plaintiffe share wiii have to be of the Court Fees Act. ^—~——-—— ^. P.T.O. •^{T<_.... S" XI-HC-7S sn^rgiTf^qra? treffsn^raiw *11N^T§KHrai 3:^;3IPTRPT, ®Tfl<^'ls,fs|<-<lti^< .]<<.'.^..:^Ai4.0.1^ ,9 5 V^ 200 6 3n^?rV^K (i^g^Er) S^IRKflferSfI^T — $~- A harmonious cons Section-7 wili show that the of a land revenue paying that is, t'wenty times the lani different interpretation wili inasmuch as in a suit for pi land revenue, the plaintiff wi revenue, whiie in a suit for plaintiff is out of possession, the actual market value. We| the legislative intent. So far is concerned it wouid have Section-7(v) as also under Shri N.K.Agrawal, No.1(a) to (e) undertook to value of his share i.e. on th| thereon under Section-7(vi-c| to amend the plaint averm^ pay ad valorem court fees a| defendants' No. 1 to 6 men) piaintiff had prayed that t| defendants No.1 to 6 and tht thereof. It was submitted y' during the course of argume|i in Schedule-B, super structi|: +ioFc<^H tii^Tfffe^ <Riwi< ^sri^irsn^T ^uction of paragraphs' (v) and (vi) of jegisiature intended that the market value ftd Tor both the clauses wili be the same. revenue as provided under ciause(v). A ;reate a conflict in these two clauses [issession simpliciter of land assessed to be required to pay twenty times the land Ipartition and separate possession, when he will be required to pay Court fees on cannot attribute such an inconsistency to Ss the superstructure standing on the land to be valued on the market value under iction-Z(vi-a) oft'ne Court Fees Act. i^arned Sr. Counsel for the respondent )ay ad vaiorem court fees oniy on the full valuation of the super structure situated (b) of the Court Fees Act. He undertook nts regarding valuation of the suit and to ;cordingly. So far as the lands sold by the ioned in Schedule-B were concerned, the lose tands be put to the share of the js had not claimed share in or possession y the learned counsei for the appellants its that on the agriculture lands mentioned re had been erected after the execution of P.T.O. I? tVtlT-t-. < £ XI-HC-78 sfi^r^rf^iR; tWI3TI^T»4icb \v-" *<l*l^l sh«<ra» 3^ -^wwi, w^v'ie, Rlcllti^ ,K'.^:.l^.o.-..4i.os-/ gy Wi; 200 („ 3n^?r(raw (^cfi^ci^r) s^iiwtifersii^r — ^ sale deed. In view ofthe not required to pay ad vat1 structure on lands mentioned ple^dings and legal position, the plaintiff was ttirem court fees on the value of super |in Scheduie-B ofthe plaint. In the result, the impi in Civil Appeal No. 18-^ passed by the Fifth Civil Ju' 140-A/2003 are set aside. regarding estoppel and the v/ith other issues at the time mixed question of law and fs concerned, the respondentSi suit in the plaint and pay ad (b) of the Court Fees Act mentioned in Schedule-A piaintiff is not required to p| partition on the value of tt] mentioned in Schedute-B to costs. A/2005 on ct>i<llci<l1-f tf|t«lTfffe'<iltRl'KK ^srf^iTan^r Igned judgment dated 17.11.2005 passed as aiso the order dated 19.4.2005 i|jge, Class-11, Ambikapur in Civil Suit No. It is directed that issues No. 10 and 12 qUestion of limitation shall be decided alona [of final disposal of suit since they contaln ;t. So far as the-issues No. 9 and 11 are Iplaintiffs shali amend the valuation of the valorem court fees under Section-7(vi-a) the full va!ue of his share of the lands .nd superstructure thereon if any. The ay ad valorem court fees for the relief of super structure erected on the lands jhe plaint. There shali' be no order as to ! Sd/- iDilip Raosaheb Deshmukhj I Judge l! ' P.T.O.