CHHOTU Vs. MOOLA

JUDGEMENT

(1.) THIS is defendants appeal who lost in the Courts below. This appeal was admitted on 13.2.2006 on the following substantial question of law:

(2.) LEARNED counsel appearing for the appellants submitted that:

(3.) LEARNED counsel appearing for respondents supported the judgment and decree passed by the Court below and submitted that appellants are not entitled to raise a plea of section 53-A of the Transfer of Property Act in this appeal, as this plea was not raised by the appellants in the Courts below and for the first time, this plea cannot be permitted in the second appeal. So far as applications filed under Order 6 rule 17 CPC and under Order 41 rule 27 CPC are concerned, it is submitted that the document was well within the knowledge of the appellants and it was not filed in the Courts below. Though, in the application appellants have stated that due to lack of legal advise, this document could not be produced but it is not a ground to fill the lacuna and to permit the appellants to produce the evidence in second appeal. Respondents have also stated that on the basis of document filed under Order 41 rule 27 CPC in this Court, the appellants have sought amendment in the written statement, so the applications may not be allowed at the stage of second appeal. In respect of non-payment of court-fees, it is submitted that the suit was initially filed for the relief of permanent prohibitory injunction but subsequently, the suit was amended and relief for possession was prayed. The suit was valued for 20 times of the land revenue which was Rs.99/- and 40 paise but the court-fee was paid at Rs.20/-, so it was not necessary on the part of the appellant to pay further court-fee. As per section 7 (v) of the Court Fees Act, for possession the court-fee was payable 20 times of the land revenue so assessed. It is submitted that the land was assessed to the land revenue and court-fee as paid earlier was sufficient and no further court-fee was required.