PRAKASH WATI Vs. DAYAWANT

JUDGEMENT

(1.) This suit is at the admission stage. Counsel for the plaintiff was called upon to satisfy this Court whether proper court fee has been paid on the various reliefs claimed in this suit. The plaintiff has claimed the following reliefs in this suit

(2.) In para 20 of the suit the plaintiff has mentioned that approximate value of the property in question is Rs. 9.00,000.00 (nine lakhs) and the value of the plaintiff's share would be about Rs. 1.05 lakhs. It was pleaded that the parties in the suit are in joint possession of the property and thus, a court fee of Rs. 201.00 is being affixed on the plaint for the relief regarding partition and for separating the plaintiff's share. So. the question which arises for decision is whether proper court fee has been paid by the plaintiff with regard to relief of partition of.the property ? The plaintiff, as mentioned above, has sought the partition by metes and bounds and then has sought an injunction restraining defendant No I from preventing the use, occupation and possession of the suit property. It is settled law that in order to decide as to what relief has been claimed by the plaintiff, in fact, the whole of the plaint has to be read. It is clear that in case from the perusal of the plaint it is to be inferred that the plaintiff and defendants are in joint possession of the property in question, then the court fee paid initially on the relief regarding partition is correct but if the court is to come to the conclusion that the plaintiff is cot m possession of any portion of the property inquestion then the plaintiff has to pay the court fee on the value of her share. Plaintiff claims to be the co-owner of the property No. D-74A, Moti Nagar, New Delhi. The property was owned by her mother and after the death of her mother on January 6, 1972. the plaintiff and the defendants being the only heirs have inherited the said property in equal shares. It is mentioned in the plaint that Smt. Vishnu Wanti, mother of the plaintiff was suffering from cancer since 1970 and defendant No. 2 was looking alter her mother who was living with her and the remaining defendants had all been married and were living separately and used to come and live in the suit premises off and on to look after their mother and it was defendant No. 2 who was the only earning member of the family was supporting the mother. In Dccember 1971 defendant No. 1 was asked by the mother to come and live in the suit premises and defendant No. 2 also continued to live in room marked 'A' in the 'plan attached with the plaint in blue colour and that plaintiff and defendants 3 to 5 also used to come frequently and live in the property in question. Then, it is mentioned that after the death of the mother defendant No. 2 continued to remain in exclusive possession of the room marked 'A' and in joint possession of the remaining portion and continued to support defendant No. I who-was in very stringent financial circumstances. Then, it is pleaded in para9 that the plaintiff and defendants 2 to 5 continued to exercise all rights of co-ownership and possession over the suit property without any bindrance and objection till July 4. 1990. It was also averred that the plaintiff's daughter's marriage was also solemnised and performed in the property in suit and the room marked 'A' remained in continuous possession of defendant No. 2 wherein also belongings of mother were being kept and the plaintiff continued to be in joint use and occupation of the said room.

(3.) In para 12 of the plaint, it was pleaded that the plaintiff and defendant No. 3 came to the suit property as usual but they were threatened and were physically attacked causing serious injuries to defendant No. 3 and. defendant No. I and her family members had threatened the plaintiff and the remaining defendants and warned them that they should not come to the property in suit. It is pleaded in para 13 that till July 4, 1990, the suit property was being used jointly amicably by all the co-owners who weie in joint possession. Now the question which arises for consideration is whether from these pleadings could it be said that on the date the suit was filed the plaintiff was injoint possession of the property in question? It is clear from the pleadings that the plaintiff was never in physical possession of any portion of the property in question and since July 4, 1990, they are being not allowed to even visit the property by defendant No. I and her family members. In view of these pleadings it cannot be inferred that the plaintiff is in joint possession of any portion of the properly in question. Hence, the plaintiff has to, in my opinion, pay the court fee on the value of her share for seeking the relief of partition and for possession of her separated share. In re Nanda Lal Makherjee, AIR 1932 Calcutta 227. it has been held that if a person who is entitled to claim partition of the property is out of possession of his share he has to pay the court fee on the value of his share for seeking relief of possession of his share by partition. Same ratio was laid down in (Mir)Hassan Khan v.Ahmad Khan & Others, AIR 19 35 Peshawar 30 In a Full Bench judgment of Allahabad High Court in OnkarMal & Others v. Ram Sarup & Others, AIR 1954 Allahabad 722, it was laid down that the general rule that the court must base its decision as to the court-fee payable on the allegations and prayers in the plaint is correct only to the extent that the general rule is invoked primarily for the purposes of classification of suit ; in other words, in order to find out the nature of the suit and. the category it belongs to, the Court most examine the allegations and reliefs claimed in the suit for the simple reason that it is allegation made in the plaint which determine the nature of the suit. It was observed that even in the matter of classifying the suit the general rule is ignored where it appears, on the construction of the plaint that the real relief sought is something different than what is asked for in the disguised form. The Court must then intervene and ignore the ostensible form and language adopted in the plaint. It was held that in the matter of computation of court fee the aforesaid general principle cannot have so wide a scope as it has in determining the nature of the suit. It was further observed that this process also involves the examination of the plaint allegations and if there is nothing to indicate otherwise, the plaintiff's valuation prima facie is accepted as correct and ordinarily the court would accept court-fee paid in the first instance as correct but if it transpires subsequently that an allegation of fact on the basis of which the court-fee was computed is not correct, then it within the power of the Court to demand additional court fee before the judgement is pronounced. In the present case, talking the avertments made in the plaint on their face themselves it is quite clear that the plaintiff has alleged that she has been ousted from the house as she is not being permitted to even visit the house by defendant no. 1. In other words, the plaintiff cannot be treated to be even in joint possession of the property in question.