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Judgment
Indermeet Kaur, J.
CM No. 2132/1999 (under Order 5 Rule 20 CPC)
Respondents have been served and they are represented. This application has thus become infructuous. Dismissed as withdrawn.
CM No. 191/1998 (for directions)
Not pressed. Dismissed as withdrawn.
RSA No. 28/1998
This second appeal has been preferred against the impugned judgment and decree dated 29.10.1997 wherein the finding of the Trial Judge dated 7.5.1983 dismissing the suit of the plaintiff on two preliminary issues had been endorsed.
On 21.3.1974 the Trial Judge had formulated six issues. Issue No. 2 was treated as preliminary issue which inter alia reads as follows:
Whether the suit is properly valued for the purpose of court fees and jurisdiction: If not, what is the proper valuation? OPP
On 6.4.1981 additional issues were framed of which issues No. 5B and 5D were again treated as preliminary issues. They inter alia reads as follows:
5B.Whether the suit is not maintainable as alleged in para No. 7 of preliminary objection of W.S.? OPD
5D.Whether this Court has jurisdiction to try the present suit? OPP
This suit has been filed by the plaintiffs seeking joint management of the property in dispute i.e. land measuring 2 Bighas 16 Biswas comprising in Khasra No. 41/6 situated at Dichaun Kalan, Delhi. The preliminary objection of the defendants was that the suit is not maintainable in the present form as the consequential relief for possession had not been prayed for. Trial Judge had decided this issue in favour of the defendants and against the plaintiffs; suit in the present form was held not maintainable. While dealing with issue No. 2, Trial Judge had held that the suit has also not been properly valued for the purpose of court fees and jurisdiction. This issue was also accordingly been decided in favour of the defendants.
The first Appellate Court vide its judgment dated 29.10.1997 had endorsed the findings of the Trial Judge. It was held that the suit is barred under the provisions of Section 34 of the Specific Relief Act as the consequential relief of possession had not been claimed by the plaintiff. The finding on issue No. 2 that the suit had not been properly valued for the purpose of court fees and jurisdiction had also been endorsed.
Before this Court learned Counsel for the appellant has urged that a substantial question of law has been arisen which has been expounded as follows: Admittedly, the property in dispute is an open plot of land upon which a temple and piao had been constructed in one corner. It is submitted that the plaintiff is deemed to be in possession with his co-owner and as such it was not necessary for him to pray for the relief of possession. Learned Counsel for the appellant has placed reliance upon a judgment of the Division bench of this Court reported in FAO (OS) 220 of 1995 Shri Shiv Kumar Kapahi v. Shri Sushil Rattan Kapahi and Ors. and observations of the Court on page No. 2 of the judgment have been highlighted which inter alia reads as follows:
The appellant also claims that the land is vacant land. In what manner he is claiming exclusive possession of the vacant land is also a matter for consideration. Normally, the law relating to vacant land is that possession follows title and all the joint owners should be deemed to be in joint possession unless one owner has physically excluded others by partitioning the property or by demarcating the property and entering into possession exclusively.
These observations of the Divisions Bench are of no help to the appellant in view of the pleadings made by him in the plaint itself. Para 6 of the plaint reads as follows:
That however, in January, 1973, when a temple was constructed with the help of the joint funds, in a corner of the Khasra Number in dispute, Shri Pyare Lal at the time of opening ceremony got installed a stone slab of his own name written with the year 1969. The plaintiffs objected to this act of Shri Pyare Lal but henceforth late Shri Pyare Lal claimed an exclusive possession in himself in collusion with defendants No. 2 to 5. He and now defendants 1(i to vii) have no right to be in exclusive possession of the Khasra number in dispute and the plaintiffs are entitled to joint possession of the said Khasra number with all the constructions on it including the tube-well and the electric motor. The defendants however do not concede to the plaintiffs demand, and they therefore, file this suit.
These averments clearly show that the plaintiff himself has alleged that the defendant No. 1 in collusion with defendants No. 2 to 5 are now in exclusive possession of the aforestated disputed property. In this view of the matter the submission of the learned Counsel for the appellant that he was deemed to be in joint possession with the other co-owners is incorrect as he had himself pleaded that the exclusive possession of the property had been taken over by the defendants. It were these facts which had weighed in the mind of both the fact finding Courts below while disposing of this issue with regard to the maintainability of the suit. The first Appellate Court had also rightly and correctly relied upon the provisions of Section 34 of the Specific Relief Act.
The findings of the two Courts below that the admission of the plaintiff in his pleadings that a temple and piao had been built in the suit property admittedly evidenced that this property would have some market value and as such the court fees affixed on the plaint not being affixed as per the market value of the property, this issue was also decided against the plaintiff. Findings of the Court that the court fee should have been fixed as per the provisions of Section 7(v)(e) of the Court Fee 1870 Act was the correct legal proposition. The fixed court fee of Rs. 50/- paid on the plaint was accordingly held to be not the correct value for the purpose of court fee and jurisdiction.
There are no errors committed in the findings of fact given by the two Courts below and which had been appreciated on the basis of the pleadings made in the plaint. In view of these admissions made by the plaintiff in his plaint, the suit was dismissed as being not maintainable.
The questions of law as formulated in the memo of appeal by the appellant finds mention on page 7 of the appeal. They border on the submission that the suit could not have been decided only on preliminary issues without giving an opportunity to the plaintiff to lead evidence to show his joint possession of the land along with the other defendants; these are grave errors which have raised substantial question of law. These submissions of the appellant merit no consideration. It is from the extract of the pleadings made by the plaintiff himself in his plaint which had led the Courts below to decide the suit on the two preliminary issues raised before it, relating to its maintainability and the value of the suit for the purpose of court fee and jurisdiction. Suit was clearly not maintainable in view of the specific bar u/s 34 of the Specific Relief Act; the suit had been filed by the plaintiff seeking joint management of a temple in respect of Khasra No. 41/6 in a portion of which a temple and piao had been constructed. Plaint had expressly admitted that the defendants had taken over the exclusive possession of the said properly. In view of this, the prayer made in the suit as aforenoted i.e. for joint management of the property without the consequential prayer for possession was not maintainable. No question of law much less any substantial question of law has arisen in this matter.
Appeal is dismissed.
File be consigned to record room.