In MIRZA RAHEEM BAIG V/s. MIRZA MAHAMOOD BAIG
AND OTHERS , the suit was filed for partition, separate
possession and for cancellation of the registered gift deeds. The
trial Court observed that the documents filed showed that the
possession of the property was not joint and accordingly directed
payment of court fee under Section 34(1) of the Act of 1956. This
Court held the approach of the trial Court in that case to be wrong,
opining that in a suit for partition, the court fee must be
determined on the basis of the averments made in the plaint and
at that stage the Court is not entitled to travel beyond the plaint
averments. This Court held that the finding of the trial Court,
basing on the pahanies, that the plaintiff was not in joint
possession of the suit property was completely erroneous in law
and that such a finding could have been rendered only after the
trial of the suit.
Perusal of the docket order under revision reflects that the
aforestated three decisions were cited before the trial Court.
Notwithstanding the same, the trial Court was of the opinion that
the sale deeds said to have been executed by the 1st, 2nd and 3rd
defendants showed that possession was delivered to third parties
and therefore, the petitioners/plaintiffs could not claim to be in
possession. It is therefore manifest that the trial Court did not
limit its consideration to the plaint averments but examined the
contents and merits of the suit documents. When the
petitioners/plaintiffs specifically averred that the alienation
effected under the sale deeds was a sham and nominal one and
that it was not binding upon them, the trial Court could not have
gone by the contents of the said documents to the exclusion of the
plaint averments, which read to the effect that the property in
question was a joint family property and that without prior
partition, the share falling to the lot of the petitioners/plaintiffs
had been alienated unlawfully. As to what would be the impact of
such alienation on the joint possession claimed by the petitioners/
plaintiffs was a matter which essentially fell for consideration
during the trial.
HYDERABAD HIGH COURT
THE HONBLE SRI JUSTICE SANJAY KUMAR
CIVIL REVISION PETITION NO.4508 OF 2016
DATED:28-10-2016
N.Savithri and others
V
N.Hanmappa and others
Citation: AIR 2017 Hyder 1
The plaintiffs in O.S.S.R.No.1359 of 2016 on the file of the
learned Senior Civil Judge, Vikarabad, Ranga Reddy District, are
in revision under Article 227 of the Constitution aggrieved by the
docket order dated 19.08.2016 passed by the trial Court requiring
them to pay ad valorem court fee under Section 34(1) of the
Andhra Pradesh Court Fees and Suits Valuation Act, 1956 (for
brevity, the Act of 1956).
As the suit is yet to be numbered and has not even been
taken on file by the trial Court, there is no necessity for this Court
to give an opportunity of hearing to the respondents, the
defendants in the said suit, at this stage.
Heard Sri Suresh Bhaktula, learned counsel for the
petitioners/plaintiffs.
The suit, O.S.S.R.No.1359 of 2016, was filed before the
learned Senior Civil Judge, Vikarabad, Ranga Reddy District, for
partition and separate possession of the suit property, being an
extent of agricultural land admeasuring Ac.3.28 guntas situated in
Sy.No.229/? of Tandur Village and Mandal, Ranga Reddy District,
and house property bearing Door No.8-2-39, situated at old
Tandur, Tandur Municipality, Ranga Reddy District. The suit
plaint reads to the effect that the suit schedule property belonged
to one Sayappa, the father of the 1st respondent/1st defendant and
was inherited upon his death by the 1st respondent/1st defendant.
The 2nd and 3rd respondents/2nd and 3rd defendants and the
husband of the 1st petitioner/1st plaintiff are the sons of the 1st
respondent/1st defendant. While so, the husband of the 1st
petitioner/1st plaintiff died in a road accident, leaving behind the
petitioners/plaintiffs as his legal heirs. Claiming that the suit
property was ancestral property and still remained joint, the
subject suit was filed for partition and separate possession.
According to the petitioners/plaintiffs, the 1st, 2nd and 3rd
defendants had alienated the agricultural land in favour of the 4th,
5th and 6th defendants with a dishonest and malafide intention and
the said alienation, being a sham and collusive one, was not
binding on them.
These being the plaint averments, the trial Court was of the
opinion that as the sale deeds said to have been executed by the
1st, 2nd and 3rd defendants in favour of the 4th, 5th and 6th
defendants recorded that possession was delivered, the question of
the petitioners/plaintiffs claiming joint possession did not arise.
The trial Court, recording so in its docket order dated 19.08.2016,
directed the petitioners/plaintiffs to pay ad valorem court fee
under Section 34(1) of the Act of 1956.
Section 34 of the Act of 1956, to the extent relevant, reads as
under:
34. Partition Suits:--(1) In a suit for partition and separate
possession of a share of joint family property or of property owned,
jointly or in common, by a plaintiff who has been excluded from
possession of such property, fee shall be computed on the market
value of the movable property or three-fourths of the market value
of the immovable property, included in the plaintiffs share.
(2) In a suit for partition and separate possession of joint
family property or property owned, jointly or in common, by a
plaintiff who is in joint possession of such property fee shall be
paid at the following rates:--
When the plaint is presented to
(i) a District Munsif Court Rupees Fifty
(ii) a Subordinate Judges Rupees one hundred if the
Court or a District Court. value of plaintiffs share is
less than Rs.10,000. Rupees
two hundred if the value is
not less than Rs.10,000.
(3) ..
Section 34(1) of the Act of 1956 would therefore apply to a
partition suit where the property is owned jointly but the plaintiff
is excluded from the possession of such property. In such a
situation, the plaintiff is required to pay the court fee upon the
market value of the property concerned. Section 34(2) of the Act of
1956, on the other hand, applies to a partition suit where the
property in question is owned jointly and the plaintiff, being in
joint possession, seeks partition and separate possession. In such
a situation, the court fee is fixed as stipulated thereunder.
It is a settled position of law that at the time of institution of
the suit the Court is required to go only by the plaint averments for
the purpose of ascertaining the court fee payable. As observed by
a Division Bench of this Court in A.DIVAKRUPAMANI AND
ANOTHER V/s. A.SAKUNTALA DEVI AND OTHERS , at the
inception of the suit the trial Court has to go by the recitals of the
plaint and only if a challenge is laid by the defendants at a later
point of time, the trial Court can frame a triable issue as to
whether the suit was properly valued and whether the court fee
paid was proper. The Division Bench pointed out that even
otherwise the Court is empowered under Section 11 of the Act of
1956 to reopen the issue as to payment of court fee. The Division
Bench pointed out that these are stages which would arise later
and not at the time of numbering of the suit based on the plaint
averments.
Dealing with a similar fact situation, as is arising in the
present case, in R.V.BHUVANESWARI AND OTHERS V/s.
PONNUBOINA CHENCU RAMAIAH (DIED) AND OTHERS , this
Court observed that once the plaint averments read to the effect
that the alleged alienation by way of a sale deed was sham and
nominal and that the alienators had no right to sell the joint family
property without there being a division and opined that the
question as to whether the possession was joint at the time of the
alleged alienation is to be decided after trial of the suit and not at
the stage of numbering of the suit by the office of the Court.
Again in GUNDSAY SWAROOPA V/s. GUNDSAY BALAIAH ,
this Court observed that the trial Court, for collection of court fee,
has to see the averments made in the plaint as to whether there
was a prior partition of the suit schedule property which was
stated to be in joint possession. If, upon the defendants
appearance, a plea is taken that there was an earlier partition, it
was observed that it would be open to the trial Court to frame an
appropriate issue as to valuation of the suit and payment of court
fee, but at the stage of presentation of the suit, the plaint cannot
be returned on the presumption that there was a prior partition.
In MIRZA RAHEEM BAIG V/s. MIRZA MAHAMOOD BAIG
AND OTHERS , the suit was filed for partition, separate
possession and for cancellation of the registered gift deeds. The
trial Court observed that the documents filed showed that the
possession of the property was not joint and accordingly directed
payment of court fee under Section 34(1) of the Act of 1956. This
Court held the approach of the trial Court in that case to be wrong,
opining that in a suit for partition, the court fee must be
determined on the basis of the averments made in the plaint and
at that stage the Court is not entitled to travel beyond the plaint
averments. This Court held that the finding of the trial Court,
basing on the pahanies, that the plaintiff was not in joint
possession of the suit property was completely erroneous in law
and that such a finding could have been rendered only after the
trial of the suit.
Perusal of the docket order under revision reflects that the
aforestated three decisions were cited before the trial Court.
Notwithstanding the same, the trial Court was of the opinion that
the sale deeds said to have been executed by the 1st, 2nd and 3rd
defendants showed that possession was delivered to third parties
and therefore, the petitioners/plaintiffs could not claim to be in
possession. It is therefore manifest that the trial Court did not
limit its consideration to the plaint averments but examined the
contents and merits of the suit documents. When the
petitioners/plaintiffs specifically averred that the alienation
effected under the sale deeds was a sham and nominal one and
that it was not binding upon them, the trial Court could not have
gone by the contents of the said documents to the exclusion of the
plaint averments, which read to the effect that the property in
question was a joint family property and that without prior
partition, the share falling to the lot of the petitioners/plaintiffs
had been alienated unlawfully. As to what would be the impact of
such alienation on the joint possession claimed by the petitioners/
plaintiffs was a matter which essentially fell for consideration
during the trial. The finding of the trial Court at the threshold,
while dealing with the valuation of the suit for the purpose of the
court fee, that the petitioners/plaintiffs could not claim joint
possession therefore effectively decided one of the crucial issues
arising for consideration in the main suit. This approach on the
part of the trial Court was completely unsustainable in law. As
matters stand, going by the plaint averments, the
petitioners/plaintiffs were entitled to pay court fee under Section
34(2) of the Act of 1956. However, as observed by this Court in the
judgments cited supra the power under Section 11 of the Act of
1956 would be available to the trial Court and in the event the
issue of valuation of the suit and payment of proper court fee
thereon arises at a subsequent stage, the trial Court would always
be at liberty to take recourse to use of such power.
Subject to the above observation, the civil revision petition is
allowed. The trial Court is directed to accept the court fee on the
subject suit under Section 34(2) of the Act of 1956 and proceed in
the matter accordingly. Pending miscellaneous petitions shall
stand closed in the light of this final order. No order as to costs.
__________________________
SANJAY KUMAR, J
28th OCTOBER, 2016
Print Page
AND OTHERS , the suit was filed for partition, separate
possession and for cancellation of the registered gift deeds. The
trial Court observed that the documents filed showed that the
possession of the property was not joint and accordingly directed
payment of court fee under Section 34(1) of the Act of 1956. This
Court held the approach of the trial Court in that case to be wrong,
opining that in a suit for partition, the court fee must be
determined on the basis of the averments made in the plaint and
at that stage the Court is not entitled to travel beyond the plaint
averments. This Court held that the finding of the trial Court,
basing on the pahanies, that the plaintiff was not in joint
possession of the suit property was completely erroneous in law
and that such a finding could have been rendered only after the
trial of the suit.
Perusal of the docket order under revision reflects that the
aforestated three decisions were cited before the trial Court.
Notwithstanding the same, the trial Court was of the opinion that
the sale deeds said to have been executed by the 1st, 2nd and 3rd
defendants showed that possession was delivered to third parties
and therefore, the petitioners/plaintiffs could not claim to be in
possession. It is therefore manifest that the trial Court did not
limit its consideration to the plaint averments but examined the
contents and merits of the suit documents. When the
petitioners/plaintiffs specifically averred that the alienation
effected under the sale deeds was a sham and nominal one and
that it was not binding upon them, the trial Court could not have
gone by the contents of the said documents to the exclusion of the
plaint averments, which read to the effect that the property in
question was a joint family property and that without prior
partition, the share falling to the lot of the petitioners/plaintiffs
had been alienated unlawfully. As to what would be the impact of
such alienation on the joint possession claimed by the petitioners/
plaintiffs was a matter which essentially fell for consideration
during the trial.
HYDERABAD HIGH COURT
THE HONBLE SRI JUSTICE SANJAY KUMAR
CIVIL REVISION PETITION NO.4508 OF 2016
DATED:28-10-2016
N.Savithri and others
V
N.Hanmappa and others
Citation: AIR 2017 Hyder 1
The plaintiffs in O.S.S.R.No.1359 of 2016 on the file of the
learned Senior Civil Judge, Vikarabad, Ranga Reddy District, are
in revision under Article 227 of the Constitution aggrieved by the
docket order dated 19.08.2016 passed by the trial Court requiring
them to pay ad valorem court fee under Section 34(1) of the
Andhra Pradesh Court Fees and Suits Valuation Act, 1956 (for
brevity, the Act of 1956).
As the suit is yet to be numbered and has not even been
taken on file by the trial Court, there is no necessity for this Court
to give an opportunity of hearing to the respondents, the
defendants in the said suit, at this stage.
Heard Sri Suresh Bhaktula, learned counsel for the
petitioners/plaintiffs.
The suit, O.S.S.R.No.1359 of 2016, was filed before the
learned Senior Civil Judge, Vikarabad, Ranga Reddy District, for
partition and separate possession of the suit property, being an
extent of agricultural land admeasuring Ac.3.28 guntas situated in
Sy.No.229/? of Tandur Village and Mandal, Ranga Reddy District,
and house property bearing Door No.8-2-39, situated at old
Tandur, Tandur Municipality, Ranga Reddy District. The suit
plaint reads to the effect that the suit schedule property belonged
to one Sayappa, the father of the 1st respondent/1st defendant and
was inherited upon his death by the 1st respondent/1st defendant.
The 2nd and 3rd respondents/2nd and 3rd defendants and the
husband of the 1st petitioner/1st plaintiff are the sons of the 1st
respondent/1st defendant. While so, the husband of the 1st
petitioner/1st plaintiff died in a road accident, leaving behind the
petitioners/plaintiffs as his legal heirs. Claiming that the suit
property was ancestral property and still remained joint, the
subject suit was filed for partition and separate possession.
According to the petitioners/plaintiffs, the 1st, 2nd and 3rd
defendants had alienated the agricultural land in favour of the 4th,
5th and 6th defendants with a dishonest and malafide intention and
the said alienation, being a sham and collusive one, was not
binding on them.
These being the plaint averments, the trial Court was of the
opinion that as the sale deeds said to have been executed by the
1st, 2nd and 3rd defendants in favour of the 4th, 5th and 6th
defendants recorded that possession was delivered, the question of
the petitioners/plaintiffs claiming joint possession did not arise.
The trial Court, recording so in its docket order dated 19.08.2016,
directed the petitioners/plaintiffs to pay ad valorem court fee
under Section 34(1) of the Act of 1956.
Section 34 of the Act of 1956, to the extent relevant, reads as
under:
34. Partition Suits:--(1) In a suit for partition and separate
possession of a share of joint family property or of property owned,
jointly or in common, by a plaintiff who has been excluded from
possession of such property, fee shall be computed on the market
value of the movable property or three-fourths of the market value
of the immovable property, included in the plaintiffs share.
(2) In a suit for partition and separate possession of joint
family property or property owned, jointly or in common, by a
plaintiff who is in joint possession of such property fee shall be
paid at the following rates:--
When the plaint is presented to
(i) a District Munsif Court Rupees Fifty
(ii) a Subordinate Judges Rupees one hundred if the
Court or a District Court. value of plaintiffs share is
less than Rs.10,000. Rupees
two hundred if the value is
not less than Rs.10,000.
(3) ..
Section 34(1) of the Act of 1956 would therefore apply to a
partition suit where the property is owned jointly but the plaintiff
is excluded from the possession of such property. In such a
situation, the plaintiff is required to pay the court fee upon the
market value of the property concerned. Section 34(2) of the Act of
1956, on the other hand, applies to a partition suit where the
property in question is owned jointly and the plaintiff, being in
joint possession, seeks partition and separate possession. In such
a situation, the court fee is fixed as stipulated thereunder.
It is a settled position of law that at the time of institution of
the suit the Court is required to go only by the plaint averments for
the purpose of ascertaining the court fee payable. As observed by
a Division Bench of this Court in A.DIVAKRUPAMANI AND
ANOTHER V/s. A.SAKUNTALA DEVI AND OTHERS , at the
inception of the suit the trial Court has to go by the recitals of the
plaint and only if a challenge is laid by the defendants at a later
point of time, the trial Court can frame a triable issue as to
whether the suit was properly valued and whether the court fee
paid was proper. The Division Bench pointed out that even
otherwise the Court is empowered under Section 11 of the Act of
1956 to reopen the issue as to payment of court fee. The Division
Bench pointed out that these are stages which would arise later
and not at the time of numbering of the suit based on the plaint
averments.
Dealing with a similar fact situation, as is arising in the
present case, in R.V.BHUVANESWARI AND OTHERS V/s.
PONNUBOINA CHENCU RAMAIAH (DIED) AND OTHERS , this
Court observed that once the plaint averments read to the effect
that the alleged alienation by way of a sale deed was sham and
nominal and that the alienators had no right to sell the joint family
property without there being a division and opined that the
question as to whether the possession was joint at the time of the
alleged alienation is to be decided after trial of the suit and not at
the stage of numbering of the suit by the office of the Court.
Again in GUNDSAY SWAROOPA V/s. GUNDSAY BALAIAH ,
this Court observed that the trial Court, for collection of court fee,
has to see the averments made in the plaint as to whether there
was a prior partition of the suit schedule property which was
stated to be in joint possession. If, upon the defendants
appearance, a plea is taken that there was an earlier partition, it
was observed that it would be open to the trial Court to frame an
appropriate issue as to valuation of the suit and payment of court
fee, but at the stage of presentation of the suit, the plaint cannot
be returned on the presumption that there was a prior partition.
In MIRZA RAHEEM BAIG V/s. MIRZA MAHAMOOD BAIG
AND OTHERS , the suit was filed for partition, separate
possession and for cancellation of the registered gift deeds. The
trial Court observed that the documents filed showed that the
possession of the property was not joint and accordingly directed
payment of court fee under Section 34(1) of the Act of 1956. This
Court held the approach of the trial Court in that case to be wrong,
opining that in a suit for partition, the court fee must be
determined on the basis of the averments made in the plaint and
at that stage the Court is not entitled to travel beyond the plaint
averments. This Court held that the finding of the trial Court,
basing on the pahanies, that the plaintiff was not in joint
possession of the suit property was completely erroneous in law
and that such a finding could have been rendered only after the
trial of the suit.
Perusal of the docket order under revision reflects that the
aforestated three decisions were cited before the trial Court.
Notwithstanding the same, the trial Court was of the opinion that
the sale deeds said to have been executed by the 1st, 2nd and 3rd
defendants showed that possession was delivered to third parties
and therefore, the petitioners/plaintiffs could not claim to be in
possession. It is therefore manifest that the trial Court did not
limit its consideration to the plaint averments but examined the
contents and merits of the suit documents. When the
petitioners/plaintiffs specifically averred that the alienation
effected under the sale deeds was a sham and nominal one and
that it was not binding upon them, the trial Court could not have
gone by the contents of the said documents to the exclusion of the
plaint averments, which read to the effect that the property in
question was a joint family property and that without prior
partition, the share falling to the lot of the petitioners/plaintiffs
had been alienated unlawfully. As to what would be the impact of
such alienation on the joint possession claimed by the petitioners/
plaintiffs was a matter which essentially fell for consideration
during the trial. The finding of the trial Court at the threshold,
while dealing with the valuation of the suit for the purpose of the
court fee, that the petitioners/plaintiffs could not claim joint
possession therefore effectively decided one of the crucial issues
arising for consideration in the main suit. This approach on the
part of the trial Court was completely unsustainable in law. As
matters stand, going by the plaint averments, the
petitioners/plaintiffs were entitled to pay court fee under Section
34(2) of the Act of 1956. However, as observed by this Court in the
judgments cited supra the power under Section 11 of the Act of
1956 would be available to the trial Court and in the event the
issue of valuation of the suit and payment of proper court fee
thereon arises at a subsequent stage, the trial Court would always
be at liberty to take recourse to use of such power.
Subject to the above observation, the civil revision petition is
allowed. The trial Court is directed to accept the court fee on the
subject suit under Section 34(2) of the Act of 1956 and proceed in
the matter accordingly. Pending miscellaneous petitions shall
stand closed in the light of this final order. No order as to costs.
__________________________
SANJAY KUMAR, J
28th OCTOBER, 2016
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