c ^t\<.^ (^ COURT OF AT C.C ^5'y'^ t-S, tr-^ilOOIl IIIICsfii" ^niCl^ .^-^-\:r Oi C.tle l^^ti^CliUiiOIi Cfl lllcll^i i^Jl^ E.'K. BafcBynarayan, 52 vezrs, S/o Ariun Sahu, R/o village Palari, Tafasil Giinu Distt.Dms(C.G.) VERSUS RESPONDENTS 1 Yasliwatit Kiitns.r, S/o Slm Mangata Rain Sahii- 3U yeais, 1) Tamanlal, S/o Sahu, about a^ ysars, ''•s ^\. •5. jT ^^'^•"in^1^ ^^ *-^yy~h •a+'^ym ^'j^ ^'^'^ i &^'^b jayiB*'n: ^i-*-h"^*s^ r^*-»^* '-£ sj IMSIlg.i^. 1:£.^TII SBJIII^ 5/0 ISilg V^BIlgIK.U ^3B.U, 3^gCl abom s3 veais- A\ "i v^-it-yi Tl^r' ^-t-'ii^'i-i v-SiT^. 'l'-lt^l ^-'l"|rilht syl.T-il S"'lrlt1-i '-ti-e.=SJ:l *-iU.f-LT;4' ^ j-iijl*ii i-^<dS i3duil.4.., -3sU IslLC ^-'lillCl.^.U O^JI.U.; iag.C'LS. AUyi^ / ^, yg31S, *%I R/oVili^e Pnjlfl».,Ta.hsi1 Sunun. Di-stt. 'DUT^ C-Gl 5) Clunxaram, S/o late Chlieria.i Sahu, 65 yeare, "D s_-i •;-»ii^??^-. Tl.---n^a-^^••---^ s^ji} vuiyMS ir'^J^lil-sil-dl- DhamtaaC-G TansilandUistt. 6) of ChliattiBgarii, Collfictor, Du% Distt. DIHB. C.G. PETITION UNDER ARTICLE 22'7 OF THE CONSTITUTION OF - INDIA FOR ISSUANCE OF APPK)PRIATE WRIT OF CERTIORARI AND DIRECTIONS A-A ^ <^. HIGH COURT OF CHHAmseARH AT BILASPUR Writ Petition No. 2573 of 2004 Petitioner Babru Narayan Versus Respondents Yashwant Kumar & others *<. Post for Judgment and Order on^ddy of September, 2008. Sd/- satish K. Agnihotri Judge '6 ^S".9.2008 IN THE HIGH COURT OF CHHATTISGARH : BILASPUR Writ Pedtion No. 2573 of 2004 Petitioner Babru Narayan, aged about 52 years, S/o Arjun Singh Sahu, R/o village Palari, Tahsil Gumr, Distt. Durg (C.G.) Versus Respondents 1. Yashwant Kumar, S/o Shri Mangata Ram Sahu, aged about 50 years. Tamanlal, S/o Shri Mangata Ram Sahu, aged about 45 years. Mangta Ram Sahu, S/o late Chherku Sahu, aged about 85 years. Arjun Das Sahu, S/o late Chherku Sahu, aged about 72 years. All R/o Village Palari, Tahsil Gurur, Distt. Durg C.G. Chintaram, S/o late Chherku Sahu, aged about 65 years R/o village Parastarai, Tahsil and Distt. Dhamtari, C.G. State of Chhattisgarh, through Collector, Durg, Distt. Durg, C.G. 2. -3. 4. 5. 6. WRITPETITIQN UNDER ARTICLE227_OFTHE CQNSTITUTIQN_OF_INDIA (SB: HonTsle Shri Satish K. Agnihotri J.) Shri Vishnu Kostha, Advocate for the petitioner. Shri Rajeev Shrivastava, Advocate for the respondent No.l. None for the respondents No. 2 to 5. Shri Vivek Sharma, Panel Lawyer for the respondent No.6. JUDGMENT AND ORDER (Passed on this ^2A?day of September, 2008) 1. The petitioner has filed this petition questioning the legality and validity of the order dated 7.7.2004 (Annexure P/7) passed by the Additional District Judge, Balod, District - Durg in Ciyil Suit No. 15-A/2003, directing the petitioner/plaintiff to pay the advalorem Court-fees for the reliefs claimed in the plaint. "B rt ff •? Bw"" Learned counsel appearing for the petitioner submitted that one Chiman filed the Civil Suit No. 48-A/98 in the Court of Additional Sessions Judge, Durg for declaration of sale deed dated 1.2.1991 as null and void and permanent injunction against the respondents No. 1 and 2 (Yashwant Kumar Sahu and Taman Lal). During the pendency of the suit said Chiraan died on 29.9.2000. Thereafter the present pedtioner (Babru Narayan) filed an application for substitution of his name as plaintiff on the basis of a Will'. The application was dismissed. The father of the petitioner namely Arjun Singh Sahu also filed an application for substitution of his name as plaintiff, stating that he is one of the brother of the deceased Chinian. The application filed by Arjun Singh Sahu (father of the petitioner) was allowed. The suit is pending trial. The petitioner did not challenge the order of rejection of his application for substitution as legal heir of late Chiman/plaindff in the Civil Suit No. 46-A/98, but filed a separate suit being Civil Suit No. 15-A/2003 for declaration to the effect that the sale-deed dated 1.2.1991 is void, possession and permanent injunction in respect of the land bearing Khasra Nos. 1473 and 1501, area 2.27 and 0.20 hectare total 2.47 hectare (6.17 acre), Patwari Halka No. 3, Tahsil - Gurur, District Durg, subject matter of the sale-deed dated 1.2.1991. It was subnaitted by the petitioner in his plaint that he is son of the brother (Arjun Singh Sahu) of late Chiman. Late Chiman made the petitioner as legal heir by way of the Will' dated 7.2.2000. Respondents No. 1 and 2 (Yashwant Kumar Sahu and Taman Lal) are sons of elder brother (Mangla Ram) of ^fS^ ^y.&. /r J?!.''?^^';'^. i.1 'SSS^'*® 9 ^^/ "•:%?fK^^^;r-r deceased Chiman. They got executed the sale deed dated 1.2.1991 in deceitful manner in respect of the suit land. The respondents No. 3 to 5 (Mangata Ram Sahu, Arjun Das Sahu and Chintaram) are real brother of late Chiman. The wife (Kainla Bai) of late Chiman died in the year 1998, prior to the death of Chiinan. The Civil Suit No.l5-A/2003, ffled by the petitioner was in respect of the same land and same relief for which late Chiman had filed the Civil Suit No. 46-A/98, wherein the father of the petitioner was substituted as plaintiff in place of late Chiman. Thereafter, the petitioner filed an applicadon (Annexure P/5) under Section 151 of the Code of Civil Procedure (C.P.C.) on 20.9.2003 for stay of the proceedings of the Civil Suit No. 46-A/98. The application was considered by the Additional District Judge, Balod and by order dated 7.7.2004 it was directed to pay the advalorein Court-Fees, observing that in Civil Suit No. 46-A/98 for the same dispute and same relief Court Fees of Rs. 18240/- has been aIGxed, whereas on the suit filed by the petitioner Court-fees of Rs. 573/- has been afBxed. Learned Court below held that firstly the petidoner should have paid the advalorem Court Fees on his plaint only in that event his application would be considered. Being aggrieved, the petitioner has filed this petition. Shri Vishnu Kostha, leamed counsel appearing for the petitioner submits that the petitioner is not liable to pay the advalorem Court-fees in Civil Suit No. 15-A/2003, as the petitioner was not a party to the alleged sale deed dated ,1 i^'ilS'SSt**-*'^ , ^•..:.?^E23iF-.,''^ '^T^^s1^. ^ /? ^y 1.2.1991. The defendants are in possession of the land in dispute, The present suit is filed to obtain a declaratory decree where no consequendal relief was prayed. 7. Per contra, Shri Rajeev Shrivastava, learned counsel appearing for the respondent No.l would submit that the pedtioner is liable to pay fhe advalorem Court-fees as the petitioner has prayed for declaradon with consequential relief. As the application of the petitioner for substitution as legal heir of late Chiman was rejected, he should have challenged that order. In absence of challenge, that order has attained finality. In the present suit the petitioner has not sought for declaration as legal heir of late Chiman. The defendant/respondent No.l has questioned the maintainability of the suit on the ground of advalorem Court-fees, limitation and jurisdiction. Thus, leamed trial Court was justified in directing the petidoner to pay the advalorem Court-fees. 8. I have heard leamed counsel appearing for the parties and perused pleading and the documents appended thereto. 9. I have found that the observations made by the Court below are just, legal and proper. The Court below has considered the facts in detailed, and held as under : " m^t ^T^iRTzpr 'gva gRraT^TaiT ^ f^sF <<I<;-U'M i^Pr ^T t^TFIT R'11'4) 1.2.91 ^it ST^Ef ^ ^T qtftra R»4 u[T^ t^ ^raT cTFEfT 7PIT t 1 ^T ?l^ t^ ^ ^' ^ft cTR v^if ^ •CTqer ^' ^K <t>*)l'* 46-3T/98 trR|c|l<{1 'OTeq i^, cffer t i ^r V^fa] ^ ^t ^ gi^ -^ fft aiq^ qK ^' R-11"* 1.2.91 q5t ^RT^ ^Tift ^TcT 'iRil'hft ^;rTPIT ^it '^? fti^ uiT^ 'RT ^raT ^V f^ETT IPTT t, ^SRrt' ^T^ ^ arl^ ^ 18.240/- 'wT'tt ^ira ^iS 3RT ^w 7rer t. uwfe ^T^T ^T^TRPPT SRT •>ft ^•(ft ^K •^Pt ^ c^ 10. 11 12. ^Rfer ^' R<t>1-ii*ii i^w 1.2.91 'iit PR^T fti^ "IT^ ^>r ^T<:IT cirar ^rar t. ui^Ri 's^ SRT t';!PTT 'irul-hft ^ TRET '^' Vt^ ^Q 573/- W^t 3RT f^TT ^IT t | rt|d^|< cTR ^^fq; 4631/98 ^' IT^ qft arf? ^ f ra^ ^^ T^I SRT f^TT ^PTT t | q^ cTT^t y<t";"i ^' SPT-TT ^rar ^crr^ i^; ^fSra^r Plqff^r vt^ ^•d SRT ^?. cpft qrtt ^5t srk ^ u-t^d STT^-T Tra ^? f^ciR Riqr un^TT 1 " ^ The contention of learned counsel appearing for the petidoner is not sustainable in law and as such, is rejected. The contention of learned counsel appearing for the respondent No. 1 raerits acceptance. It is well-nigh established that this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India should refrain itself from interfering with the order passed by the Courts below, except in such cases where perversity, illegality, irregularity or jurisdictional error is writ large on the face of the record, which is not in the present case. The order iinpugned herein is unexcepdonable and does not warrant interference. In view of the foregoing, I do not find any merit in this petition. The petition is dismissed accordingly. No order ascosts. Sd/- SatishK. Agnihotri Judge Thakur