Full Judgment
1 HIGH COURT OF MADHYA PRADESH AT JABALPUR WRIT PETITION NO.654/2013 Basant Kumar - V/s - Ved Prakash and others Present : Hon’ble Shri Justice Rajendra Menon. ----------------------------------------------------------------------------------------- Shri Sameer Seth, Advocate for the petitioner. Shri Imtiaz Hussain, Advocate for the respondents 1 to 5. Shri Rajesh Tiwari,Government Advocate for respondent No.7. ------------------------------------------------------------------------------------------ ORDER
(19-02-2014) Challenge in this writ petition under Article 227 of the Constitution is made to an interlocutory order dated 7.11.2012 passed in MJC No.03/2012 and an order dated 15.09.2012 passed in Civil Suit No.110- A/2008 by the First Civil Judge Class-II East Nimar, Khandwa allowing the application under Order 7 Rule 11 of CPC and directing the petitioner plaintiff to pay ad valorem court fee in accordance to section 7(vi-a) of the Court Fees Act, 1870.
2. It is the case of the petitioner that as petitioner is seeking possession and mesne profit with regard to agricultural land from his brothers, sisters and mother ad valorem court fee is not payable instead court fee in accordance to section 7(v)(a) of the Court Fees Act is payable.
3. The land in question is ancestral property of the petitioner's family. The petitioner and respondents No.1,2 & 3 are real brothers, respondents No.4 & 5 are their sisters and Smt. Anokhibai was originally impleaded as respondent No.6 was their mother and it is seen that she had expired on 13.1.2013. On the ground that the property is a family property and the petitioner is entitled to his share of the property in accordance to the law of succession, the suit was filed seeking separate possession and mesne profit in the aforesaid land. For the purpose of valuation the suit has been valued and court fees paid based on land revenue for the land and multiplied it by 20 i.e. court fees have been paid as per the provision of section 7(v)(a) of the Court fees Act. 2 W.P.No.654/2013 4. Respondents filed their written statement and thereafter raised an objection by way of application under Order 7 Rule 11 of CPC and stated that in a suit for partition ad valorem court fee under clause 7(v)(a) has to be paid. By the impugned order dated 15.9.2011 this application was allowed. Petitioner therefore filed a review application in MJC No.3/2012 which was dismissed vide order dated 7.11.2012 and therefore this writ petition.
5. Shri Sameer Seth, learned counsel for the petitioner, invited my attention to the provision of section 7(v)(a) of the Court Fees Act and argued that when the land is only agricultural land assessed to land revenue then Court fee has to be paid twenty times of the land revenue under clause 7(v)(a) and no ad valorem court fee as is contemplated for partition suit in general is payable. In support of his contention he placed reliance on the judgment of this Court in the case of Bhagwati vs. Chamar Rai-1980(II) MPWN22and judgment of this Court in the case of Narayan Prasad vs. Jagdish and others-2011(2) MPLJ116 6. Shri Imtiaz Hussain, learned counsel for the respondents, refuted the aforesaid that argued that in the suit for partition of the land in question the valuation in accordance to suit for partition has to be ordered.
7. I have heard the learned counsel for the parties and perused the record.
8. Section 7(v)(a) of the Court Fees Act contemplates a provision for the matter of payment of court fees in suit for possession of lands, houses and gardens and the said section reads as under: Section 7(v). For possession of lands, houses and gardens.- In suits for possession of lands, houses and gardens, according to the value of the subject matter, and such value shall be deemed to be where subject matter is land; and (a) such land is assessed to land revenue or land revenue is payable in respect of such land-twenty times the land revenue so assessed or so payable; (b) such land forms a part of land which is assessed to land revenue or in respect of which land revenue is payable twenty times of the land revenue proportionately worked out for such part of land; (c) such land is not assessed to land revenue-twenty times of the land revenue worked out at the rate of five rupees per acre. 3 W.P.No.654/2013 Similarly section 7(vi-a) contemplates a provision for payment of court fee in suit for partition and the same reads as under: Section 7(vi-a). in suits for partition.- (a) according to one half of the value of the plaintiffs share of the property; and (b) according to the full value of such share if on the date of presenting the plaint the plaintiff is out of possession of the property of which he claims to be a co-parcener or co-owner, and his claim to be a co-parcener or co-owner on such date is denied.
9. If the plaint filed by the petitioner Annexure-P/2 is taken note of, it would be seen that the property in question is an agricultural land which is the ancestral property of the family and petitioner is claiming possession of the land based on his right to the property.
10. In the case of Bhagwati (supra) the provision of the Court fees Act has been taken note of and it has been held in the aforesaid case that in the suit for possession of a land assessed to land revenue, the plaintiff is only required to pay twenty times of the land revenue as court fee. It is held that if the plaintiff is out of possession he will be required to pay court fee on the actual market value. Based on the aforesaid judgment in the case of Narayan Prasad (supra) also various other judgments have been taken note of and decided the matter in the following manner:- In the matter of Bhagwati vs. Chamar Rai,1980(II) MPWN Note 22, wherein the suit was instituted for partition and separate possession of 1/4th share in the suit lands which are separately assessed to land revenue, this Court held that perusal of clause (vi-a) of section 7 shows that in a suit for partition, without claiming separate possession, the suit has to be valued according to one-half of the value of the plaintiffs share of the property. This is indicative of the facts that Court fees payable on such a suit is less than the Court fee payable when a suit is instituted for partition and separate possession on the ground that the plaintiff is out of possession. The Legislative intent is thus clear that when a plaintiff claims partition and separate possession on the ground that he is out of possession, the claim is to be valued just like a suit for possession simpliciter. In fact, when a co-owner files a suit for partition and separate possession, on the ground that he is out of possession, there is no difference between such a suit and a suit for possession based on title.The amendment to the Court Fees Act (Act No.4 of 1976) with effect from 1-3-1976 was introduced to clarify that even in cases where possession of a part of the land separately assessed to land revenue was claimed, Court fees payable on such claim will be proportionately worked 4 W.P.No.654/2013 out for such part of the land. This clarification had become necessary to get over some judgment which had laid down that where the claim was for the entire land separately assessed to land revenue, its marked value will be deemed to be twenty times the land revenue but if it was for a part of land and that part was not separately assessed, the claim will have to be valued on the actual market value. The intention was to provide relief to agricultural and the owners of land revenue paying lands.
11. In view of the aforesaid principles of law, it is clear that in the present case, the petitioner only claims his right to possession for his share to the property which is now jointly held along with his brothers and therefore it is a suit which would fall under clause 7(v) and directing payment of court fee on the basis of suit for partition, an error has been committed by the Court below.
12. Keeping in view the aforesaid, the petition is allowed and the impugned orders are quashed. (RAJENDRA MENON) JUDGE b