SRI RAM PROSAD KUNDU Vs. SRI ARUNANGSHU KUNDU

JUDGEMENT

(1.) This revisional application is directed against an order no. 143 dated 21.2.2009 passed by the learned Civil Judge (Junior Division), 1st Court, Barasat in Title Suit no. 240 of 1999 by which applications under section 151 and Order 23 Rule 1 of the Code of Civil Procedure are rejected. The opposite party no. 1 as plaintiff instituted a suit for declaration of his right, title and interest in respect of the property described in the schedule to the plaint with further declaration that the petitioners and opposite party no. 2 to 5 have no manner of right, title and interest in respect of the suit property and the alleged deed of gift on the basis whereof the said defendants claimed their right are fraudulent, void and not binding upon the opposite party. That being the subject matter of the suit, the defendant no. 1/petitioner appeared and contested the said suit by filing a written statement denying that the opposite party no. 1 has any shambles of right, title and interest in the suit property.

(2.) After filing of the written statement the petitioner took out an application for permission to incorporate counterclaim which was eventually allowed. By way of counterclaim the petitioner prayed for declaration that he is the owner in respect of 54 cents by virtue of deed of gift dated 22.9.1997 and a decree for eviction.

(3.) The opposite party no. 1 raised an objection as to the payment of court fee on the basis of valuation given for the said counterclaim and invited the court's attention to ascertain the value of the relief claimed by way of counterclaim, for the purpose of payment of the requisite court fee which was dismissed by the trial court on 12.8.2005. Against the said order the opposite party no. 1 preferred a revisional application being CO 3159 of 2005 which was disposed of with a direction upon the trial court to assess the court fee on the basis of valuation of the subject property and the trial court thereafter vide order no. 105 dated 27.1.2006 directed the Sheristadar to seek valuation report of the subject property included in the counterclaim from the District Collector.