SUSHMA AGARWAL Vs. MURARI & ORS

JUDGEMENT

(1.) With the consent of the parties, the matter is finally heard. The present petition has been preferred challenging the order dated 29.11.2012 passed by the learned trial Court while deciding the issue no. 4 as a preliminary issue in the matter has directed the plaintiff to value the suit from the consideration of the single sale deed whereby the plot for which the respondent No.1/plaintiff is claiming 1/3rd part is sold to various persons by separate sale deeds.

(2.) It is alleged by the counsel for the petitioners that the mother of the respondent/plaintiff Janakrani @ Vishna Bai filed a suit for declaration and possession against the defendants stating that she is having 1/3rd share in the property in question. The description of the property is mentioned in the plaint. It is alleged that after the death of father of defendants No.1 and 2 without notice to the respondents has got the names mutated in the whole property. When the aforesaid aspect of mutation of names of the defendants No. 1 and 2 came to her knowledge immediately a civil suit has been filed claiming 1/3rd share in the suit property. It was specifically pleaded by the defendants in the written statement that they sold the part of land by different sale deeds to respondents No.4, 5, 6 and 7 of which the plaintiff was having full knowledge and in the special plea the defendants No.1 and 2 have pleaded that Babulal on 11.09.1996 has given the property to Krishna Bai who was looking and taking care of her father till his death and after the death of Krishna Bai defendants No. 1 and 2 have sold a plot measuring 30x15 to Chandresh Mathur for a consideration of Rs.56,300/- another plot measuring 30x30 ft was sold to Dr. Sushma Agrawal on 3.6.2003 for a consideration of Rs.90,000/- and vide sale deed dated 22.09.2003 again two plots were sold to Dr. Sushma Agarwal for consideration of Rs. 1,60,000/- and thereafter on 16.12.2003 a plot was sold to Mohini Devi and Geeta Devi for consideration of Rs.1,65,000/-. All the aforesaid sale deeds were in the knowledge of the plaintiff and on the date of filing the suit the market value of the land is approximately Rs.20,00,000/-, therefore, the court fee should have been valued in terms of the sale deed. The learned trial Court has framed five issues and issue No.4 was with respect to payment of court fees. The learned trial Court while deciding the preliminary issue has taken into consideration only one sale deed executed on 22.09.2003 for consideration of Rs.1,60,000/- and has directed for payment of Court fees in terms of the aforesaid sale deed but the fact remains that there were four sale deeds executed and the plaintiff is claiming 1/3 rd share of his property from the whole land part of which is being sold by the aforesaid sale deeds.

(3.) It is alleged that the valuation of the property is to be made taking into consideration all these four sale deeds. In such circumstances, the learned trial court has committed an error in not taking into consideration the other sale deeds. Thus, he has prayed for modification of the impugned order to the extent that the court fee should be paid by the plaintiff considering all the four sale deeds. Learned counsel for the petitioner has further submitted that from a bare reading of the plaint it cannot be ascertained that on what basis the plaintiff has valued the suit property. He has relied upon the judgments passed in the cases of Israt Jahan (Smt.) Vs. Rajia Begum and Others, reported in ILR (2009) MP 3107 and Arvind Kumar Sahu Vs. Smt. Ushakiran and Others, reported in 1997 (2) JLJ 138. He has further relied upon the judgment passed in case of Badrilal v. State , reported in 1963 JLJ 674 and has argued that the Court is not bound by the valuation made by the plaintiff. It is further alleged that the suit property is to be taken in whole and even if there is no prayer for setting aside of the sale deed then once the share is being claimed from the part of the land which is sold by the sale deed then it is deemed that the sale deed is put to challenge. He has prayed for modification of the impugned order to the extent of valuation of the suit property in terms of the valuation of all the four sale deeds.