Vinod vs Sumitra Bai

The appellants/ defendants have filed the present appeal under Order 43 Rule 1(u) of the CPC against the order dated 19.07.2018 passed by the 2nd ASJ, Garoth, District Mandsaur in Civil First Appeal No.81-A/2013 thereby appeal filed by the respondent has been allowed and the Suit has been remitted back to the trial Court.

Facts of the case in short are that the respondent nos.1, 2, and 3 being the plaintiffs filed the suit for the reliefs of declaration, partition and permanent injunction against their elder brother and father. According to the plaintiffs, under the Hindu Succession Act, they have equal share in the ancestral property. The defendant no.5 had sold some part of the ancestral property to defendant no.1 and thereafter, he had sold the same to defendant nos.2 and 3. According to the plaintiff, the said sale deeds dated 13.04.2006, 27.04.2006 and 21.03.2007 are not binding on them. The plaintiffs are claiming 3/5 share in the suit property and also the possession and mesne profit.

After filing the written statement by the defendants, the trial Court framed the issue nos.6 and 7 apart from other issues in respect of valuation of Suit and Court fees payable on plaint and pecuniary jurisdiction. Vide order dated 21.02.2013, the learned Civil Judge has ansered both the issues against the plaintiffs and returned the plaint under provisions of Order 7 Rule 10 of the CPC for presentation in the Court having the pecuniary jurisdiction. The learned Civil Judge has also held that the plaintiffs are required to value the suit on the basis of market value of the properties in the sale deeds dated 13.04.2006, 27.04.2006 and 21.03.2007. The plaintiffs are also liable to pay advelorem Court fees as they are challenging the sale deed as well as claiming the possession. Being aggrieved by the aforesaid order, the plaintiffs preferred an appeal before the District Judge. The same has been registered under (S) Regular Civil Appeal. Otherwise, the Miscellaneous Appeal lies under Order 41 Rule 1(a) of the CPC against the order dated 21.02.2013. Vide judgement dated 19.07.2018, the learned ADJ has set aside the order dated 21.02.2013 and remanded the case of the trial Court to decide all the issues on the basis of evidence. Being aggrieved by the aforesaid order, the defendant nos.1, 2 and 3 have preferred the present appeal under Order 41 Rule 1(u) of the CPC.

Shri S.A. Athawale, learned counsel for the appellants submits that the learned first appellate Court has wrongly held that the plaintiffs have rightly paid the fixed amount court fee and wrongly remand the case. He has placed reliance over the judgement passed by the Apex Court in the case of Suhrid Singh @ Sardool Singh vs. Randhir Singh and Others [(2010) 12 SCC 112] in which apex Court has held that the plaintiff is liable to pay advalorem court fees if he is seeking not only the declaration that the sale deed is invalid but also seeking consequential relief of possession.

Shri Himanshu Joshi, learned counsel for the respondents submits that the trial Court ought to have given opportunity to value the suit before return it. The plaintiffs filed the suit for agriculture land. Therefore, they are required to value the suit on the basis of 20 times of land revenue, hence, the first appellate Court has rightly remanded the case.

Shri Himanshu Johsi, learned counsel for the respondents/plaintiffs further submits that the present appeal is not maintainable under Order 43 Rule 1(u) of the CPC.

Shri S.A. Athawal, counsel for the plaintiffs submits that since the first appellate Court had registered the appeal as regular Civil Appeal and vide judgment dated 19.07.2018, has remanded the suit after setting aside the judgment and decree, therefore, the appellants have rightly filed the Miscellaneous Appeal under Order 43 Rule 1(u) of the CPC.

It is correct that against the order dated 21.02.2013 whereby the suit was returned under Order 7 Rule 10 of the CPC, the Miscellaneous Appeal lies under Order 43 Rule 1(a) of the CPC, but since the trial Court has disposed the suit finally and directed to deposit the record in the record room. Hence, the plaintiffs wrongly filed the first appeal and the learned ADJ has entertain the same as a regular appeal and passed the judgment, therefore, the appeal has rightly filed under Order 43 Rule 1(u) of the CPC, therefore, this appeal is maintainable and the same is being decided on merit.

The plaintiffs field the suit claiming declaration that the sale deeds executed by the defendant no.5 be declared invalid and not binding on the plaintiffs. The plaintiffs are claiming 3/5 shares by way of partition and also the possession. Undisputedly, the suit land is the agricultural land in which the land revenue is payable. Therefore, the plaintiffs have rightly valued the suit 20th times to the land revenue payable on the land and paid the advalorem court fees. They have also valued the suit for the relief of permanent injunction and partition and paid the fixed court fees.

As per Section 8 of the Suit Valuation Act, the value is determined for the computation of the Court fees and the same value for the purpose of jurisdiction shall be the same. The plaintiffs have rightly valued the suit on the basis of court fees payable on 20th times the land revenue payable on the suit land. The first appellate Court has rightly held that the trial Court ought to have given an opportunity to the plaintiffs to value the suit before deciding its pecuniary jurisdiction and the learned appellate Court has rightly directed the trial Court to decide the suit on the basis of evidence on record on all the issues. Therefore, the present appeal stands dismissed.