V.S.K SOOD Vs. VIR SURINDER BERI

JUDGEMENT

(1.) BY this application the Defendant No. 1 seeks return of the Plaint and dismissal of the suit under Order VII Rule 10 and 11 CPC on account of not affixing the requisite court fees.

(2.) LEARNED counsel for the applicant/Defendant No. 1 contends that during the lifetime of the parents itself a Memorandum of Understanding dated 13th August, 1988 had been arrived at between the parties whereby the properties were mutually divided between the Plaintiff, Defendant No. 5 and Sukhdev Beri who is now represented through the legal heirs of Defendant No. 2. By the present suit the plaintiff is seeking possession of property in the garb of a partition suit. Further admittedly even as per the pleadings of the Plaintiff, the Plaintiff is not in possession of the suit property and thus he is required to pay ad-valorem court fee. Having pleaded ouster, the Plaintiff cannot say baldly that the Plaintiff is in constructive possession of the suit property. Reliance is placed on Harjit Kaur vs. Jagdeep Singh, 2005 (116) DLT 392, Nisheet Bhalla vs Malind Raj Bhalla, AIR 2007 (Del) 60 and Saroj Salkan vs. Sanjeev Singh and others, 2008 (155) DLT 300.

(3.) I have heard learned counsel for the parties.