SANJEEV AGGARWAL Vs. ROSHAN LAI SOOD

JUDGEMENT

(1.) ADMITTED facts of this case are that the parties to the suit are co -owners of the property bearing Municipal No. 135, situate in Lower Bazar, Shimla, consisting of four storyes in addition to sub -basement and land underneath it, standing on an area of the land is 75 square yards out of khasra No. 413 (old), measuring 1415 square feet as per Khasra Paimayash, 1907, and its present khewat No. 1 min, khatauni No. 257, khasra No. 1046, measuring 68.38 square meters as per the revenue record, i.e. Misal Hakiyat Bandobast Zadid (Second Revised) 2002 -2003 of Bazar Ward, Barra Shimla, Tehsil Shimla (Urban), Distt. Shimla.

(2.) AT the time of hearing, it was not disputed that both plaintiffs have 2/5 undivided share each, in this entire property, whereas defendant has 1/5 undivided are in it. Plaintiffs claim themselves to be in possession of part of the property, whereas defendant claims to be in possession partly as owner and partly as tenant.

(3.) LEARNED Senior Counsel appearing for the defendant, at the time of hearing on 10.9.2004, urged two pleas. That after the amendment of the plaint, plaintiffs have not correctly and legally valued the suit for purposes of Court Fee and jurisdiction. Further per him, valuation of the suit for purposes of Court fee and jurisdiction has to be the same. By referring to paragraph 14 of the plaint, Shri G.C. Gupta, pointed out that the valuation fixed for the purposes of jurisdiction is 63,75,000/ - being the market value of the suit property, and of the share of each one of the plaintiffs it is Rs: 25,50,000/ -. Therefore, value for purposes of Court fee is fixed at Rs. 51,00,000/ - and Court fee is fixed at Rs. 19.50 has been affixed on the plaint. Reason for affixing the Court fee of Rs. 19.50 as per plaintiffs is that they are in possession of a part of suit property as detailed in paragraph 6 of the plaint. When a reference is made to paragraph 6 of the written statement, it is clear that possession of parties is admitted. Dispute is, regarding nature and character of possession of the parties. Defendant1 admits himself to be in possession, but not to the extent of 62% as alleged by the plaintiffs. What is the extent of defendants possession in the suit property or any part thereof, he has chosen to remain silent. He was the best person to have stated the facts.