Harnarayan Pandey vs Suresh Pandey and Others

Jwala Prasad, J.—This is a Reference u/s 5 of the Court Fees Act.

The plaintiff is aggrieved by the decision of the Court below, rejecting his unit for partition of what he alleged to be the joint family property claiming 8 annas share therein. The Court below dismissed the suit, upon the ground that the parties were not joint and that the Court fee paid was insufficient.

One of the grounds urged in the plaint for the partition was that during the revisional survey proceeding the defendants took some illegal and fraudulent proceedings in order to cause injury to the plaintiff. Apparently the defendants made assertions during the survey hostile to the interest of the plaintiff. It has been held, and if I may be permitted to say, concluded by authorities, that the claim before a Survey Officer or an entry made in the survey Records amounts to an assertion of an adverse title. In order, therefore, to succeed in the suit for partition the plaintiff must clear up his title and possession over the plots recorded adversely to him in the Survey Records. With respect to those plots he must, therefore, pay ad valorem Court fee. As the plaintiff does not specify with respect to what portions of the property the defendants made adverse assertions in the survey, nor does he disclose the nature of the survey entries, it may, therefore, be presumed that he considers the survey proceedings as having thrown a aloud over his title and possession with respect to the whole property in question. Accordingly the plaintiff must pay ad valorem Court fee u/s 7, Clause (c) of the Court Fees Act.