MADAN LAL Vs. SARMUKH SINGH

JUDGEMENT

(1.) The appellants Mr.Madan Lal and Ors. filed a suit for possession of the plot No. 11 and part of plot No.s 12 & 1.3, Sunder Park, Shastri Nagar, Delhi, as well as for recovery of damages for wrongful use of the said property by the respondents Surmokh Singh & Ors. Trial Court framed preliminary issue namely whether the Court had pecuniary jurisdiction to try such a case. By the impugned order dated 15th February, 1990, the issue was decided against the appellants and the plaint was returned for being presented to a court having the pecuniary jurisdiction. It is against this order that the present appeal has been preferred, inter alia, on the ground that for a suit for recovery of possession of plots the appellants were to pay the court fee only on the market value of the plots and not on the unauthorised superstructure raised by the respondents thereon.

(2.) In order to appreciate the challenge to the impugned order, the brief facts are that appellants were owner of plot No. 11 and part of plots No. 12 & 13, Sander Park, Shastri Nagar, Delhi. There existed a tin shed room by way of temporary construction over these plots. In 1981, respondent No. 1 approached the apellant No. 1 for the use and occupation of the said tin shed room built by the appellants on the ground that the said respondent was going to construct his own house shortly, therefore, he be permitted to use the said tin shed. Being friend the appellant No.1 permitted the respondent No.l the use and occupation of the said temporarily constructed tin shed room with clear understanding that he would vacate the same by August, 1982. However, according to the appellant the respondent took advantage of his access to the said plot and with the help of other respondents unlawfully and unauthorisedly raised construction over plot No.l 1 and part of plot Nos.12 & 13 of the suit property. The construction raised on plot No.l 1 and part of plot Nos.12 & 13, according to appellants were unauthorised and without the permission of the appellants. The property when given by the appellant No.l to respondent No.l was in the form of open plots, and therefore, the appellants by filing the present suit only sought possession of those open plots bearing Nos.11 and part of 12 & 13 with directions to respondents to remove the superstructure raised by them thereon. Hence the appellants (plaintiffs before the trial court) paid the court fee on the value of the plots, the. recovery of which was the subject matter of the suit.

(3.) It is in this background that we have to examine whether the appellants are liable to pay the court fees on the market value of the plots alone or also on the superstructure raised by the respondents on the said plot or only on the plots. The trial court erred in holding that the appellants were liable to fix the value of the suit after taking into consideration the value of the superstructure raised by the respondents on the plots of the plaintiffs. To my mind it is contrary to the well accepted principle of law because in a suit for possession of plots only and for injunction or for direction for removal of the building erected thereon unauthorisedly by the respondents, the valuation of the suit has to be according to the market value of the land. The cost of the building need not be taken into account. The observation of the trial court that the appellants claimed possession of the plots as well as of the superstructure is contrary to the facts on record. Reading of paras 5 & 6 of the plaint would show that the appellants had through out been maintaining that the room constructed on this plot No. 11 and part of plot Nos.12 & 13 were unauthorised and that the respondents be directed to remove the same and till such time they remove their illegal structure they should pay damages. The case as setup by the appellants was that the respondents should be directed to remove their unauthorised superstructure raised on the plots of the plaintiffs and possession of the plots be delivered to them. In para 3 of the written statement respondents admitted that the defendant No. 2 before the trial court had raised construction on plot No. 11 from her own funds. It was her defence before the Trial Court that she purchased the plot from the appellant No.l. I.n para 5 of the written statement it was further admitted that defendant No.2 before the trial court raised two rooms on the said plot in 1980. Thereafter, the said defendant constructed three more rooms on the said plot in 1981. This admission clearly show that superstructure was raised by the respondents and not by the appellants. The appellants waited respondents to remove the same and hand over piece of plots to them. Therefore, the observation of the trial court that the appellants were also asking for the possession of the superstructure is not borne out from the record. The plan annexed with the plaint shows the existing position of the plots Nos.11, 12 and 13. It does not mean that the plaintiffs by showing the present possession at site were claiming the possession of the superstructure as well. The case of the appellants had been consistent that the superstructure raised by respondents on their plots be removed and possession of the plots be given to them. Hence, to my mind, the appellants (plaintiffs before the Trial court) were only liable to pay the court fees on the basis of the market value of the plots and not of the superstructure raised thereon by the respondents. It is well settled principle of law that the amount of court fee payable should be according to the amount at which the relief sought is valued in the plaint. In fact the trial court erroneously took the view that since the superstructure has been shown in the plan, therefore, the relief sought by the appellants was for the superstructure as well. In fact the Court has to see the substance of the plaint. The reading of the plaint as a whole would show that the appellants had been basing their relief only on recovery of the plots in question and not the superstructure. Rather the appellants had been insisting that the respondents should remove the superstructure raised thereon.