AMARENDRA NATH VERMA Vs. BIMLESHWAR NATH VERMA

JUDGEMENT

(1.) This Civil Revision application is directed against the order dated 7-5-1996 passed by Sub-Judge IV, Betiah, in Title Suit No. 13 of 1996, whereby the learned Court below directed the plaintiffs-petitioners to pay ad valorem Court fee as the suit falls under Section 7 (iv) (c) of the Court-fee Act (hereinafter to be referred to as "the said Act").

(2.) The contention of the learned counsel for the petitioner was that the instant suit has been filed for partition and for declaration that the compromise decree passed in Title Suit No. 16 of 1985 is void and illegal and not binding upon these plaintiffs. Defendant No. 10 had filed the aforesaid Title Suit No. 16 of 1985 with respect to ancestral joint family properties and these plaintiffs had not been made party to that suit. It was further contended that the father of the plaintiffs has not made the defendant as Karta and manager of the joint family. So any signature made on the compromise is not binding on these plaintiffs. It was, therefore, contended that the suit is not barred under the provisions of the said Act. On the other hand, the contention of the defendant was that the plaintiffs are admittedly joint with their parents constituting Mithakshara Joint Hindu family under the Kartaship of the father of defendant No. 6. Consequently, the compromise entered into by their father himself in the capacity of karta of the branch is fully binding on the plaintiffs and the decree passed in the earlier partition Suit No. 16 of 1985 operates as res judicata against the plaintiffs. It was further contended that the plaintiff, in fact, seeks declaration with consequential relief and, therefore, the suit falls within the purview of Section 7(iv)(c) of the said Act.

(3.) I have heard counsels appearing on behalf of the parties at great length. It is well settled that question of Court fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas taken in the written statement or by the decision of the suit on merit. The entire allegation made in the plaint and the relief sought for has to be looked into for the purpose of determining whether the suit falls within the purview of Section 7 (iv) (c) of the said Act. Before determining this question, it is, therefore, necessary to look into the plaint, a copy of which has been annexed by the plaintiff-petitioners in the supplementary affidavit. In paragraph 22 of the plaint the plaintiffs sought the following reliefs :"(a) on adjudication of the facts of the case a preliminary decree of partition for 1/10th share be passed in favour of the plaintiffs and their minor brother, the defendant No. 8, in the partition claimed properties mentioned in Schedule Nos. II and III of the plaint.(b) A pleader commissioner be appointed to carve out a separate patti of 1/10th share in all the joint family properties and in terms of the report of the pleader commissioner final decree be passed in favour of the plaintiffs along with their minor brother, the defendant No. 8.(c) A decree for permanent injunction be passed restraining the defendants from ousting the plaintiffs alongwith their family members from the residential house described in Schedule No. II of this plaint and also from executing any type of deed with respect to the partition claimed properties.(d) It be adjudicated and declared that neither the alleged compromise petition in terms whereby T. S. No. 16/85 was decreed as also the alleged deed of gift dated 17-10-95 alleged to be executed by Mahamaya Verma in favour of the defendant Nos. 3 to 5 do not in any way affect the interest of the plaintiffs and the defendant No. 8 in joint family properties and are also not binding upon them.(e) Cost of the suit be given to the plaintiffs.(f) Any other relief or reliefs deemed fit and proper be also awarded to the plaintiffs.