Surjit Kaur and Others vs Lila Wati and Others

Rakesh Kumar Jain, J.—The question involved in this petition is as to whether a fixed Court-fee or Ad valorem Court-fee is to be paid by the appellant on an application filed in a suit for partition? In brief, the petitioner/plaintiff filed a suit for possession by way of partition of land measuring 2 kanal 15 marlas, situated in the revenue estate of Dasuya, District Hoshiarpur.

On the contrary, the defendant contested the suit on the ground that the land has already been partitioned and they have become owners of the property in dispute.

On the pleadings of the parties, following issues were framed by the trial Court on 17.1.2003:-

Whether the disputed property is joint ownership of the plaintiff and defendant? OPP

Whether the plaintiff is entitled for partition of the disputed property by meets and bounds? OPP

Whether the plaintiff has no locus standi to file the present suit? OPD

Whether the suit is not maintainable in the present form? OPD

Whether the suit is bad for misjoinder and non joinder of necessary parties? OPD

Whether the suit is without any cause of action? OPD

Whether the plaintiff is estopped and debarred from filing the suit on the ground of estoppel? OPD

Whether the plaint is not properly valued for the purpose of court fee and jurisdiction? OPD

Whether the site plan filed by the plaintiff is incorrect? OPD

Whether the defendant No. 5 is entitled for counter claim for separate possession by way of partition? OPD (defendant No. 5)

Relief:

The trial Court dismissed the suit of the plaintiff holding that the property in dispute is not joint property of the parties but has already been partitioned vide mutation No. 5591 and the plaintiff has not affixed Court-fee in terms of the decision of the Delhi High Court rendered in the case of Smt. Rani Devi Vs. Ashok Kumar Nagi and Another, , in which it has been held that ''if the suit property is in exclusive possession of defendant No. 1, the plaintiff is required to pay court fee on the value of her share''.

Aggrieved against the order dated 19.2.2003 passed by the trial Court, the petitioner filed the statutory appeal but the appeal was not decided on merit and was sought to be rejected under Order 41 Rule 3 read with Order 7 Rule 11 and Section 107 of the C.P.C. vide order dated 19.1.2004 holding that in a suit for partition, the plaintiff is required to pay ad valorem Court fee in the appeal.

Learned counsel for the petitioners has argued that in a suit for partition even if they are out of possession, a fixed Court fee is liable to be paid and in support of his argument, placed reliance upon a Full Bench judgment of Lahore High Court reported as Smt. Rani Devi Vs. Ashok Kumar Nagi and Another, followed by this Court in the case of Hari Nath Mittal Vs. Satish Kumar and others in which it has been held that "in an appeal arising from a suit for partition of joint properties, of which the plaintiff claimed to be in actual or constructive possession, a court fee of Rs. 10/- is payable on the memorandum of appeal, even though the trial Court had found the plaintiff not to be in possession of some or all such properties".

Learned counsel for the respondents has vehemently argued that once it has been held by the trial Court that they have become owners of the property in dispute which has already been partitioned vide mutation No. 5591, the suit of the plaintiff is not maintainable and had to file a suit for possession by affixing ad valorem court fee.

After hearing learned counsel for the parties and examining the record, I am of the considered opinion that this revision petition deserves to be allowed because the plaintiff had filed a suit for partition of the property in dispute alleging himself to be in joint possession, though this fact has been strongly denied by the defendant on the basis of evidence and a finding has been recorded by the trial Court. In the case of Diwan Chand (Supra), the Full Bench has categorically held that in appeal arising from a suit for partition of alleged joint properties of which the plaintiff claimed to be in actual or constructive possession, a Court fee of Rs. 10/- is payable on the memorandum of appeal even though the trial Court had found the plaintiff not to be in possession of some or all such properties. The law laid down by the Full Bench squarely covers the case of the plaintiffs because they are claiming themselves to be in joint possession, though there is a finding recorded against them by the trial Court, but in appeal they can always challenge the finding of fact recorded against them on the ground of misreading of evidence. Thus, right of appeal cannot be denied to the petitioners on the ground that finding has been recorded against them by the trial Court that the property has already been partitioned and the defendant/respondent has become owner of the property in dispute on the basis of mutation. Accordingly, this revision petition is allowed and the impugned order is hereby set aside.