HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Civil Revision No.176 of 2013 Gorelal Lodhi and others Vs. Ratan Lal Lodhi and others. Shri Mukhtar Ahmad :- Counsel for the applicants. ORDER
1110/2013 U.C. MAHESHWARI, J.
1. The applicants - defendants nos. 1, 3 (a), 3 (b), 5 (3) and 5 (b) have filed this revision under Section 115 of CPC being aggrieved by the order dated 11.1.2013, passed by the Xth Civil Judge, Class-II, Jabalpur in Civil Suit No.122-A/2005, whereby their application filed under Order 7, Rule 11 of CPC, for dismissal of the suit for want of proper valuation and the court fee accordingly, has been dismissed.
2. The facts giving rise to this revision in short are that the respondent No.1 herein has filed the aforesaid suit against the applicants as well as against remaining respondents as stated in the cause title of the plaint, (Ann. P-1) for partition and some other reliefs with respect of the land described in plaint. Besides the cause title on perusing the prayer clause of the plaint, it is apparent that the suit has been filed by the respondent No.1 for partition and separate possession of his 1/7th share in such property alongwith the prayer for declaration to declare the family arrangements, letter dated 11.6.1984, alleged Will dated 26.6.1992 and 4.5.1994 to be ab initio void and the same are not binding against him. As per para 11 of the plaint, in view of the prayer of the respondent- plaintiff for partition and separate possession of his 1/7th share in the disputed land by assessing the twenty times of land revenue Rs.1516/- of entire land, out of which accordingly to his 1/7th share in the property, the suit is valued in that ratio for the purpose of the court fees Rs.217/- and court fee was also paid accordingly in this regard. Besides this, for the purpose of the relief of above mentioned declaration the suit is separately valued on fixed valuation of Rs.1000/- and accordingly court fee of Rs.100/- is also affixed on the pliant.
3. In the written statement of the applicant, the defendants, the averments of the plaint regarding title and interest of the respondent No.1 in the disputed property are denied. In further averments besides the other defence, the objection that suit has not been valued in accordance with law and the court fee has also not been paid accordingly, is also taken. In pendency of the suit on behalf of the applicants, the impugned application under Order 7, Rule 11 CPC (Ann. P-3) to dismiss the suit for want of proper valuation and the court fee was filed. The averments of aforesaid IA were denied on behalf of respondent No.1 by filing its reply, (Ann. P-4). In reply, it is stated that the suit has been filed on proper valuation and the court fee in accordance with provision of the Court Fee Act and prayer for dismissal of the application was made.
4. After extending the opportunity of hearing to the parties on consideration by holding that suit has been filed on proper valuation and the court fee, the application was dismissed by the trial court. Being dissatisfied with such order, the applicants have come to this court with this revision.
5. The applicants' counsel after taking me through the averments of the revision as well as papers placed on record alongwith the impugned order by referring, the decision of this court in the matter of Digambar Kumar Jain Vs. Smt. Maya Bai and others reported in 2007, (1), M.P.H.T. 69, argued that in the available factual matrix of the case when the respondent No.1 herein has filed the impugned suit for partition and separate possession of his 1/7th share of the disputed land of joint Hindu Family, then in that circumstances, it could not be assumed that with respect of the share claimed by the respondent No.1 in the suit the separate land revenue has been assessed by the revenue department in accordance with the procedure prescribed under M.P. Land Revenue Code, thus, in the lack of separate assessment of the land revenue on the claimed share of the land, in view of pleadings and the prayer of the plaint, the respondent No.1 is bound to value the suit on the market price of the property, i.e. advelorum valuation and also bound to pay the court fee accordingly and in the lack of such valuation and the court fee, the impugned suit is not entertainable but the trial court has not considered their application with proper approach and dismissed the same under the wrong premises and prayed for setting aside the impugned order and dismissing the impugned suit of respondent No.1 by allowing his impugned application by admitting and allowing this petition.
6. Keeping in view the arguments, advanced, I have carefully gone through the papers placed on record including the pleadings of the parties as well as aforesaid IA and the impugned order so also the cited case.
7. It is undisputed fact on record that the respondent No.1 herein has filed the impugned suit for partition and separate possession of his 1/7th share in the ancestral agricultural land of his Joint Hindi Family property. The description of the land alongwith its land revenue fixed under M.P. Land Revenue Code has also been stated in the plaint and it appears that concerning khasra entries have also been placed on record, according to which for all the survey numbers of the land under dispute the land revenue is fixed and on the basis of such fixed land revenue, the applicants have assessed the twenty times of the total land revenue, i.e. Rs.1516 and out of them, the valuation of the suit is made in such ratio for his 1/7th share, i.e. Rs.217/- and the court fee is also paid accordingly. So firstly in such premises, such valuation of the suit and payment of the court fee accordingly on such valuation is in consonance with the provision.
8. Apart the aforesaid, the respondent No.1 has filed the impugned suit stating himself to be the co-parcenors of the family and it is settled proposition of law that every co-parcenor is co-owner of entire property till the same is partitioned in accordance with procedure prescribed under the law and if the co-parcenory property is in possession of some other co-parcenor, then as per settled proposition of Hindu Personal Law, the possession of such co- parcenor is deemed to be the possession as trustee of other co-parcenors till the partition of the same is carried out between the co-parcenors and the separate possession is given to the co-parcenor. In such a premises by stating twenty times land revenue of the entire land for partition of 1/7th share of land without disclosing any specific part of such property in the prayer for partition and separate possession is made by the co-parcenor, then such co- parcenor is at liberty and has a right to value the suit till the extent of his share and ratio out of the total twenty times of the land revenue and he is bound to pay the court fee accordingly. It is apparent in the case at hand that after stating total sum of twenty times of land revenue out them by valuing the suit for 1/7th share of respondent No.1, in such ratio, the suit was valued and the court fee was paid accordingly. So in such premises, also the impugned order does not require any interference. Long before in the matter of Bhagwati Vs. Chamar Rai reported in 1980, MPWN, Vol. 2, Note 22 such question was answered by this court, in which it was held as under:- "A harmonious construction of paragraphs (v) and (vi) of section 7 will show that the legislature intended that the market value of a land revenue paying land for both the clauses will be the same, that is, twenty times the land revenue as provided under clause (v). A different interpretation will create a conflict in these two clauses inasmuch as in a suit for possession simpliciter of land revenue, the plaintiff will be required to pay twenty times the land revenue, while in a suit for partition and separate possession, when plaintiff is out of possession, he will be required to pay Court- fees on the actual market value. We cannot attribute such an inconsistency to the legislative intent. Gujabai v. Salubai and others, 34, MPLC98AIR1947 Nag. 243 relied on."
9. Apart the aforesaid such question was also answered by this court in the matter of Patel Tejbalsingh Vs. Patel Babulal reported in 1978, Vol. II, M.P. Weekly Note, 331 in which it was held as as under:- "This being a suit for partition, the plaintiff's being out of possession and their claim that they are co-owners is under challenge, the case is governed by section 7 (vi-a) (b) of the Court Fees Act (M.P. Amendment), and the suit has to be valued according to the full value of the share claimed in the properties. In the present case, the plaintiffs have claimed half share in the joint properties. The plaintiffs have given the details of the agricultural lands to be partitioned in schedule Kh. of the plaint. The learned trial judge on perusal of the certified copies of Jamabandi and the records of settlement for the year 1923-24 found that Khasra Nos. 17, 27, 54, 31, 99, 138 and 96 have been assessed together and land revenue is fixed at Rs.150/-. Similarly Khasra Nos. 75, 78, 97 and 116 are assessed together and land revenue fixed is Rs.53.50p. Regarding Khasra Nos. 3/1 and 80/1, Malguzari Pattas have been filed and the land revenue shown is Rs.45 and Rs. 22 respectively. Under Section 15 (2) of the C.P. Tenancy Act 1920, a Malgujar had a right to fix the rent payable by an occupancy tenant in which rent has not been fixed at settlement. Under Section 45 (4) of the M.P. Abolition of Proprietary Rights (Estates, Mahals and Alienated Lands) Act 1950, the rent so payable by a tenant to the Malgulzar would be deemed to be the land revenue after the vesting of the land in the State. Khasra No.142 is assessed to land revenue or Rs.64. Therefore, the learned trial Judge was justified in holding that these lands have been property valued at 20 times the land revenue under section 7 (v) (d) of the Court Fees Act read with section 8 of the Suits Valuation Act. Revision dismissed."
10.In view of aforesaid earlier decision of this court the impugned order being in consonance with the settled proposition does not require any interference under the revisional jurisdiction of this court. 11.In view of aforesaid elaborate discussion, the case law in the matter of Digambar Kumar Jain Vs. Smt. Maya Bai and others (supra) cited by the applicants' counsel being distinguishable on facts, so also in view of aforesaid cited decision of this court is not helping to the applicants. 12.In view of aforesaid, I have not found any perversity, infirmity, irregularity or anything contrary to the propriety of law in the order impugned. Consequently this revision being devoid of any merit is hereby dismissed at the initial stage of motion hearing. ( U.C. MAHESHWARI ) JUDGE bks