RAMESWARLAL Vs. MUKESH

JUDGEMENT

(1.) Being aggrieved by the order dated 3-2-2011 passed by ADJ, Neemuch in Case No. 9-A/2010 whereby preliminary issue No. 5 relating to Court-fee was decided against the petitioner, present petition has been filed.

(2.) Short facts of the case are that respondent No. 1 filed a suit for declaration and permanent injunction against the petitioner and respondent Nos. 2 and 3 alleging that the respondent No. 1 is the adopted son of the petitioner and was taken in adoption on 10-4-1992. It was alleged that thus the respondent No. 1 is having one half share in the suit property. It was alleged that petitioner has sold the property to respondent No. 2 vide registered sale-deed dated 26-5-2008 claiming to be sole owner of the suit property while respondent No. 1 is having equal share in the suit property being owner of the property. It was prayed that it be declared that such property is the property of Undivided Joint Hindu Family and respondent No. 1 is having one half share in the suit property and the sale-deed executed by the petitioner in favour of respondent No. 2 is void and is having no binding effect on the respondent No. 1. It was prayed that petitioner be restrained from transferring of possession of suit property to the respondent No. 2 and respondent No. 2 be restrained not to alienate the suit property. For the purpose of declaration the suit was valued as Rs. 3,67,800/- and the Court-fee of Rs. 1,000/- was fixed. For the purpose of permanent injunction suit was valued as Rs. 400/- and ad valorem Court fee of Rs. 80/- was paid. The suit was contested by the petitioner by filing the written statement wherein it was denied that the respondent No. 1 is the adopted son of the petitioner. It was denied that at any point of time respondent No. 1 has adopted the petitioner. In the suit it was alleged that suit has not been properly valued and also insufficient Court-fee has been paid. It was prayed that suit be dismissed. On the basis of pleadings of the parties, learned Trial Court framed the issues. Issue No. 5 reads as under:--

(3.) Since the issue was not required any evidence, therefore the same was framed as preliminary issue and was decided against the petitioner against which the present petition has been filed.