Calcutta High Court (Appellete Side)
Miss Natasha Sarkar & Another vs Smt. Simla Singh & Others on 31 January, 2025
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In The High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Md. Shabbar Rashidi
C.O. No. 2319 of 2019
With
CAN 1 of 2019 (Old CAN 9795 of 2019)
Miss Natasha Sarkar & Another
Vs
Smt. Simla Singh & Others
For The Petitioners : Mr. Ayanava Bhattacharya, Adv.
: Mr. Pawan Kumar Gupta, Adv.
: Ms. Sofia Nesar, Adv.
: Mr. Sankha Subhra Chaky, Adv.
For The Opposite Party
No. 1 to 4 : Mr., Achyut Basu, Adv.
: Ms. Punam Basu, Adv.
: Ms. Pritha Biswas, Adv.
: Mr. Amritansu Sengupta, Adv.
Heard On : January 17, 2025
Judgment On : January 31, 2025
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Md. Shabbar Rashidi, J.
1. The instant revisional application is in assailment of an order
dated May 27, 2019 passed by the 1st Court of learned Civil Judge
(Senior Division), Midnapur, in Title Suit No. 52 of 2017.
2. By the impugned order learned trial court rejected an
application filed on behalf of the petitioners/defendant Nos. 7 & 8
seeking rejection of the plaint filed by Opposite Party Nos. 1 to
4/Plaintiffs on the ground of non-maintainability of the Title Suit
for undervaluation and non-payment of ad-valorem court fee.
3. The Opposite Party Nos.1 to 4 herein filed a suit for partition
against Defendant Nos. 1 to 6 in the suit being Title Suit No. 52 of
2017. In the said suit, the plaintiffs therein claimed to be legal
heirs of the original owner of the suit property together with
Defendant Nos. 1 to 6 therein.
4. The present Petitioners are Defendant Nos. 7 & 8 in the said
suit. The aforesaid Defendants/Petitioners purchased a portion of
the suit properties by dint of tworegistered sale deeds said to be
executed by the other co-sharers,i.e.Defendant nos. 1 to 6 for a
total consideration ₹.5352500/-.
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5. The contesting Defendant Nos. 1 to 6 appeared in the suit and
filed written statement denying therein the plaintiffs to be their co-
sharers as the married daughters of the original owner.
6. Subsequently the present Petitioners being Defendant Nos. 7
& 8 in Title Suit no.52 of 2017entered appearancein the suit and
filed their written statement. By the written statement filed on
behalf of these petitioners, the present Petitioners/Defendant Nos. 7
& 8 raised a counterclaim in the suit praying for declaration of their
right and title over the suit properties on the basis of the alleged
two sale deeds said to be executed by Defendant Nos. 1 to 6.
7. On January 16, 2018, the present Petitioners as defendant
nos. 7 & 8 in Title Suit No. 52 of 2017 filed an application under
Order VII Rule 11(b) of the Code of Civil Procedure praying inter alia
for direction upon the plaintiff to pay ad-valorem court fee in terms
of their prayer in the Title Suit within a specified period failing
which, the learned trial court was called upon to reject the plaint in
terms of the provision under Order VII of the Code of Civil
Procedure.
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8. The Plaintiff in the suit filed a written objection against such
application and the learned trial court proceeded to decide the
maintainability of the suit in the teeth of such application.
9. It has been submitted on behalf of the Opposite Party Nos. 1 to
4/plaintiffs that they are the married daughters of original owner
Bachchu Lal Shankar. The Petitioners submit that the partition
suit being Title Suit no. 52 of 2017 was filed by Opposite Party Nos.
1 to 4 mainly challenging the execution and validity of two sale
deeds said to be executed by defendant nos. 1 to 6 in favour of the
present Petitioners/Defendants No. 7 & 8. The plaintiffs also
prayed for setting aside the said two sale deeds besides praying for
partition of the suit property amongst the plaintiffs as well as
defendant nos. 1 to 6. It is submitted on behalf of the petitioners
that unless and until the trial court decides the validity of the two
deeds executed in favour of the petitioners, issue of partition cannot
be decided. Moreover, according to the petitioners, the
plaintiffs/Opposite Party Nos. 1 to 4 have not been in possession of
these suit properties, they were required to pay ad-valorem court
fee on the amount stated as consideration many in the two sale
deeds.
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10. By the impugned order, the learned trial court upon
considering the facts and circumstances of the case rejected the
application filed on behalf of the present petitioners holding that the
suit was not undervalued and was filed with proper court fee. It is
such order which has been assailed in the present proceeding.
11. It has been submitted by the petitioners that the learned trial
court did not consider the Title Suit filed by the plaintiffs/Opposite
Party Nos.1 to 4 for partition of the suit properties. Such suit
cannot proceed without setting aside/cancellation of the two sale
deeds standing in the name of the petitioners and that such
petitioners have already come into the possession thereof. The
plaintiffs are apparently not in possession, they cannot ask for
partition without praying for possession as well as cancellation of
the sale deeds.
12. Learned advocate for the petitioners also submitted that the
suit filed by Opposite Party nos.1 to 4 is palpably undervaluedin so
far as prayer (c) of the plaint, i.e. setting aside/cancellation of the
deeds standing in the name of petitioners. In view of such prayer,
the plaintiffs were required to pay ad valorem court fee on the
consideration amount explicit in the said deeds. It was submitted
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that the learned trial court ought to have directed an enquiry in
terms of Section 11 of the West Bengal Court Fees Act, 1970 and
would have directed the plaintiffsto deposit the deficit court fee
within a reasonable time and on their failure to do so, the plaint
was liable to be rejected.
13. In support of such contention, learned advocate for the
petitioners relied upon (2010) 12 Supreme Court Cases 112
(Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors), All
India Reporter 1973 SC 2384 (Shamsher Singh v. Rajinder
Prashad & Ors), All India Reporter 1945 Lah 13 (Prithvi Raj &
Anr. v. D. C. Ralli & Ors.), All India Reporter 1943 Nag 70
(Vinayakrao Anandrao Mankar Kunbi v. Mt. Mankunwarbai w/o
R.S. Gopikisan Marwadi & Ors.), (1987) 1 CHN 30 (Nasiruddin
Mallick & Ors. v. Abdul Aziz Mallick & Ors) and 2019 (1) ICC
784 (Karn) (C. Janakamma v. Dr. C.L. Narayana & Anr).
14. Learned advocate for Opposite Party Nos. 1 to 4 reiterated that
the aforesaid opposite parties are legal heirs of the original owner
and as such co sharer in the suit property. In such, capacity, they
have filed Title Suit No 52 of 2017 for partition of the joint
properties. He submits that the valuation of a suit solely depends
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upon the reliefs claimed in the suit. A defendant has nothing to do
with the valuation of the suit. It is the court who is to decide on
such valuation. On such proposition, learned advocate for the
Opposite Party Nos. 1 to 4 have relied upon 1961 SCC OnLine SC
280 (Sri Rathnavarmaraja v. Vimla Smt) and 2014 SCC OnLine
Cal 20115 (Kanai Lal Dutta v. Babu Das Bairagya).
15. It is further submitted by learned advocate for the aforesaid
opposite parties that the undervaluation of suit and the quantum of
court fee to be paid are completely between the court and the
plaintiff. Defendant has practically no say in this regard. A plaint
cannot be rejected on the basis of allegations made out in the
written statement. In support of such contention, learned advocate
for O.P. Nos. 1 to 4 relied upon (1980) 2 Supreme Court Cases
247 (Neelavathi & Ors. v. N. Natarajan & Others).
16. It was also submitted that the plaintiffs in Title Suit No. 52 of
2017 primarily asked for partition together with consequential
reliefs. The plaintiffs, being in or not in possession of the suit
properties is of no consequence in so far as possession of one co
sharer is deemed to be possession of all the co sharers. In that view
no statement whatsoever has been made in the plaint that the
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plaintiffs/O.P. Nos. 1 to 4 are not in possession. The plaintiffs have
asked for partition by metes and bounds along with separate
possession. For such reason, the plaintiffs are under obligation to
pay fixed court fee and not an ad valorem court fee. In support of
such contention, reliance is placed on 2008 SCC OnLine Cal 63
(Kalipada Kirtan v. Bijoy Bag & Ors).
17. It was also submitted that Opposite Party Nos. 6 to 10
(Defendant Nos. 1 to 6) fraudulently executed the deeds in favour of
the Defendant Nos. 7 & 8/ petitioners, in respect of the suit
properties where the plaintiffs (O.P. Nos. 1 to 4) had vested
undivided interest. The petitioners, on the basis of such deeds,
cannot acquire title in the suit properties, better than what their
vendors held. By filing the Title Suit the plaintiffs have asked for
partition of the suit properties upon declaration of their undivided
share therein. The plaintiffs have not prayed for any relief with
regard to cancellation of such deed. A mere declaration that such
deeds were illegal, vitiated by fraud and misrepresentation and not
binding upon the plaintiffs, will not require an ad valorem court fee.
18. As noted, O.P. Nos. 1 to 4 filed Title Suit No. 52 of 2017 before
the trial court seeking partition of the joint properties by metes and
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bounds and for carving out separate share therein upon declaration
of their share.The aforesaid opposite parties claimed to be
descendants of common ancestor i.e. married daughters of the
erstwhile owner having undivided share in the suit properties being
possessed jointly with other co sharers i.e. Opposite Party Nos. 5 to
10.The aforesaid opposite parties, transferred certain joint
properties in favour of the petitioners by two registered deeds of
conveyance.
19. The bone of contention in the present proceeding is prayer (c)
of the plaint filed on behalf of the plaintiffs (O.P. Nos. 1 to 4). The
reliefs sought in the said Title Suit are reproduced here :
15. That for the purpose of determining the jurisdiction of
the Court and Court Fees the suit is valued at ₹. 61,
100/- being for partition and fixed court fee of ₹. 80/-
is paid and on the payment of proper Court Fees, the
plaintiff prays: –
(a) That on declaration of 1/6th share of each the
plaintiffs in the Suit property, the same may be
partition from the share of the Defendants by a
preliminary decree and decree of separate
possession may be passed;
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(b) That in case the Defendants failed to partition
within the time so fixed by the Court, a survey
passed lawyer of this court may be appointed
as partition Commissioner and on the basis of
the report of the partition Commissioner the
final decree may be passed;
(c) That it may be declared that the two Sale
Deeds as in Schedule A 1 below in the
name of Defendant Nos. 7 & 8 are illegal
and vitiated by fraud, undue influence,
misrepresentation and are null and void
and the Plaintiffs are not bound by such
two Sale Deeds and the two Sale Deeds
may be set aside;
(d) That an order of permanent injunction may be
passed restraining the Defendants from
dispossessing the Plaintiffs from their share in
the suit property and from transferring the suit
property to any third party;
(e) That the cost of the suit may be decreed;
(f) That any other reliefs which the Plaintiff may be
found entitled to in law and equity may be
decreed.
20. Apparently, the petitioners asked for a direction upon the
plaintiffs (Opposite Party Nos. 1 to4) to pay ad valorem court
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fee in terms of prayer (c) of their plaint. It was the contention
of the petitioners that unless such relief is granted, no relief
sought vide prayer (a) and (b) could be granted and for that
reason prayer (c) should be construed as the main relief and
the other reliefs are consequential.
21. Per contra, Opposite Party Nos. 1 to 4/Plaintiffs claimed
that they filed the suit for partition of the suit properties held
jointly between them and Opposite Party Nos. 5 to 10
(Defendant Nos. 1 to 6). Since, the aforesaid defendants
transferred a portion of joint properties without disclosing the
same to be so and claiming to be exclusive owners thereof, the
deeds so executed were outcome of fraud and
misrepresentation of facts. The plaintiffs had vested undivided
interest in the suit properties. On such score, the plaintiff
asked for a consequential relief of declaration of the deeds
standing in the name of petitioners as illegal, and vitiated by
fraud, undue influence or misrepresentation and thus null
and void.
22. Such determination would be a consequence if the
learned trial court comes to a conclusion that there was unity
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of title in respect of the suit properties amongst the plaintiffs
and the Defendant Nos. 1 to 6 and the said defendants sold
out joint properties in favour of the petitioners without a valid
partition. It may or may not be in excess of the vested share of
the defendant Nos. 1 to 6. In such a situation, Section 52 of
the Transfer of Property Act, 1882 may come into play. It
would be extremely against the public policy that if a
dishonest co sharer goes on selling the joint properties without
partition, the other co sharers would every time, be obliged to
seek for cancellation of such sale deeds, on payment of ad
valorem court fee,before seeking partition of the joint
properties.
23. As noted above, the Opposite Party Nos. 1 to 4 filed suit
for partition of joint properties as against the other co sharers
claiming themselves to be joint owners of the suit properties
withOpposite Party Nos. 5 to 10. Since the aforesaid opposite
parties had sold certain joint properties in favour of the
petitioners, they were also impleaded in the suit. Such facts do
not establish that the suit was for cancellation of the deeds in
favour of the petitioner and not a partition suit in view of the
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reliefs claimed therein. It is trite law that in case of joint
properties, possession of one co sharer is possession of all the
co sharers. In Suhrid Singh (Supra), it was observed by the
Hon’ble Supreme Court that,
“7. Where the executant of a deed wants it to be
annulled, he has to seek cancellation of the deed. But
if a non-executant seeks annulment of a deed, he has
to seek a declaration that the deed is invalid, or non
est, or illegal or that it is not binding on him. The
difference between a prayer for cancellation and
declaration in regard to a deed of
transfer/conveyance, can be brought out by the
following illustration relating to A and B, two
brothers. A executes a sale deed in favour of C.
Subsequently A wants to avoid the sale. A has to sue
for cancellation of the deed. On the other hand, if B,
who is not the executant of the deed, wants to avoid
it, he has to sue for a declaration that the deed
executed by A is invalid/void and non est/illegal and
he is not bound by it. In essence both may be suing
to have the deed set aside or declared as non-
binding. But the form is different and court fee is also
different. If A, the executant of the deed, seeks
cancellation of the deed, he has to pay ad valorem
court fee on the consideration stated in the sale deed.
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If B, who is a non-executant, is in possession and
sues for a declaration that the deed is null or void
and does not bind him or his share, he has to merely
pay a fixed court fee of Rs. 19.50 under Article 17(iii)
of the Second Schedule of the Act. But if B, a non-
executant, is not in possession, and he seeks not
only a declaration that the sale deed is invalid, but
also the consequential relief of possession, he has to
pay an ad valorem court fee as provided under
Section 7(iv)(c) of the Act.”
24. In the case at hand, no recovery of possession has been
sought in the Title Suit. What is sought for is carving out of
separate share upon declaration of separate shares of the
plaintiffs by appointment of survey knowing partition
Commissioner for the purpose.
25. In Shamsher Singh (Supra) the Hon’ble Supreme Court
noted that,
“As regards the main question that arises for
decision it appears to us that while the court-fee
payable on a plaint is certainly to be decided on the
basis of the allegations and the prayer in the plaint
and the question whether the plaintiff’s suit will have
to fail for failure to ask for consequential relief is of
no concern to the court at that stage, the court in
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deciding the question of court-fee should look into the
allegations in the plaint to see what is the
substantive relief that is asked for.”
26. The case of Prithvi Raj (Supra) as well as Vinayakrao
(Supra) are exactly on the similar point that in a suit asking
for a mortgage decree not binding upon the son, the son was
obliged to ask for setting aside the decree, as a consequential
relief upon payment of ad valorem court fee.
27. The aforesaid decisions were rendered in the context of a
declaration for binding nature of a Mortgage decree being not
binding sans consequential reliefs. whereas, in the Title Suit
under consideration, there appears no failure to ask for
consequential reliefs. Separate possession upon declaration of
legal share was sought for. There is actually no necessity to
ask for cancellation of the deeds and recovery of possession. It
would, if at all, required at the time of determination of the
shares, recovery of possession may not even be required, if the
share of the vendors of petitioners exhausts the properties
sold to them, up to their shares held by Defendant Nos .1 to 6.
On this score also, the question of paying ad valorem court fee
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does not stand. Moreover, the learned trial court also
observedin the impugned order that the plaintiff was required
to pay ad valorem court fee according to the valuation of each
one’s share, if declared, for preparation of final decree the time
of which is yet to come.
28. Nasiruddin Mallick (Supra) was rendered in a suit for
declaration of title coupled with consequential relief for
recovery of possession. The facts and circumstances of the
present case is altogether different from that which was dealt
in Nasiruddin Mallick (Supra) and as such, ratio laid down in
the said case are not attracted.
29. C. Jankamma (Supra) was delivered in relation to
Section 35 of Karnataka Court Fees Act, 1958 with special
consideration to averments made in the plaint that the
plaintiff was excluded from possession of such property.
However, in the present case, nothing is shown that the
plaintiffs were excluded from possession of joint properties. It
is well settled law that possession of one co owner of joint
property is deemed to be possession of all the co owners
unless a case of exclusion is made out.No case of exclusion
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has been made out by the defendants. The mere fact that the
plaintiffs never enjoyed the suit properties at any time is not
sufficient to bring a case of exclusion. This finding is not
enough for, the mere fact that the plaintiffs were not paid their
share of the income or were not in actual physical possession,
would not amount to the plaintiffs having been excluded from
joint possession to which they are in law entitled.
30. In Neelavathi (Supra), also the Hon’ble Supreme Court
noted that,
“7. The trial court has not placed any reliance on the
recitals in para 12 of the plaint on which the
judgment of the High Court is based. The trial court
found on evidence that the plaintiffs never enjoyed
the suit properties at any time. This finding is not
enough for, the mere fact that the plaintiffs were not
paid their share of the income or were not in actual
physical possession, would not amount to the
plaintiffs having been excluded from joint possession
to which they are in law entitled. On a consideration
of the plaint as a whole and giving it its natural
meaning, we are unable to agree with the conclusion
arrived at by the High Court.
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31. In the present case, the plaint filed in Title Suit No. 52 of
2017 depicts an unambiguous averment to the effect that the
plaintiffs have been possessing the suit properties jointly with
Opposite Party Nos. 5 to 10 who are said to have executed
false and fabricated deeds in the name of the petitioners.
There appears no specific averment, either in plaint or the
written statement, that the plaintiffs were excluded from the
joint properties.
32. Besides, in Sri Rathnavaramraja (Supra) the Hon’ble
Supreme Court was of the view that the defendant is not
entitled to challenge an order deciding the proper court fee.
The Supreme Court observed in following terms:
“3. But this section only enables the defendant to
raise a contention as to the proper court fee payable
on a plaint and to assist the court in arriving at a just
decision on that question. Our attention has not been
invited to any provision of the Madras Court Fees Act
or any other statute which enables the defendant to
move the High Court in revision against the decision
of the Court of first instance on the matter of court fee
payable in a plaint. The Act, it is true by Section 19,
provides that for the purpose of deciding whether the
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subject-matter of the suit or other proceeding has
been properly valued or whether the fee paid is
sufficient, the court may hold such enquiry as it
considers proper and issue a commission to any
other person directing him to make such local or other
investigation as may be necessary and report
thereon. The anxiety of the Legislature to collect court
fee due from the litigant is manifest from the detailed
provisions made in Chapter Ill of the Act, but those
provisions do not arm the defendant with a weapon
of technicality to obstruct the progress of the suit by
approaching the High Court in revision against an
order determining the court fee payable. In our view,
the High Court grievously erred in entertaining
revision applications on questions of court fee at the
instance of the defendant, when no question of
jurisdiction was involved.”
33. Similar view was taken in Kanai Lal Dutta (Supra) and
Smt. Durga Mudi (Supra), coordinate Benches of this court
observed that whether proper Fees are paid on a plaint is
primarily a question between the plaintiff and the State. The
learned Judge in the lower Appellate Court rightly held that
the suit has been properly valued and proper Fees have been
paid. The defendant, who may believe and even honestly,
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theproper Fees have not been paid by the plaintiff, has still no
right to move thesuperior Court against the order adjudging
payment of Fees payable on theplaint”.
34. In Kalipada Kirtan (Supra) it was laid down by a
Division Bench of this Hon’ble Court that,
“11. We find that the learned Trial Judge on
consideration of the materials on record rightly
concluded that merely because a married sister
generally resided in her matrimonial house, for that
reason, it could not be said that her title to the
property had been extinguished for want of actual
possession.
12. It is now settled law that in order to claim
adverse possession against the co-sharer, it is
necessary to establish the actual ouster of the co-
sharer of the property, inasmuch as, in the ordinary
course, the possession of one co-sharer should be in
law deemed to be the possession of the absent co-
sharer. In this connection, we may profitably refer to
the following observations of the Apex Court in the
case of Darshan Singh v. Gujjar Singh reported in
AIR 2002 SC 606 (Para 9):
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“In our view, the correct legal position is that
possession of a property belonging to several
co-sharers by one co-sharer shall be deemed
that he possess the property on behalf of the
other co-sharers unless there has been a clear
ouster by denying the title of other co-sharers
and mutation in the revenue record in the name
of one co-sharer would not amount to ouster
unless there is a clear declaration that title of
other co-sharers was denied.”
13. We have found that there is no material evidence
showing overt acts on the part of the defendants
resulting in ouster of the plaintiff from property. In
the record of right, she is still shown to be the co-
sharer and consequently, her possession is reflected
in the record of right. Although the defendant in his
deposition denied that the plaintiff paid her share of
rent through him, we are of the opinion that even if
no rent was paid by the plaintiff of her share, mere
non payment of rent by one co-sharer sister will not
amount to ouster the said co-sharer. In this
connection, it will not be out of place to refer to the
following observations of the Apex Court in the case
of Karbalai Begum v. Md. Sayeed reported in AIR
1981 SC 77 on the question of non-participation in
the rent and profit by a co-sharer: (Para 7)
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“It is well settled that mere non-participation in the
rent and profits of the land of a co-sharer does not
amount to an ouster so as to give title by adverse
possession to the other co-sharer in possession.
Indeed even if this fact be admitted, then the legal
position would be that Mohd. Bashir and Mohd.
Rashid, being co-sharers of the plaintiff, would
become constructive trustees on behalf of the plaintiff
and the right of the plaintiff would be deemed to be
protected by the trustees. The learned counsel
appearing for the respondent was unable to contest
this position of law. In the present case, it is
therefore, manifest that the possession of the
defendants, apart from being in the nature of
constructive trustees, would be in law the possession
of the plaintiff.”
28. In the light of discussions made hereinbefore, and in view
of the ratio laid down in the case of Kanai Lal Dutta (Supra)
and Smt. Durga Mudi (Supra), with regard to competence of
the petitioners to challenge the impugned order,I find no
illegality,material irregularity or impropriety in the impugned
order warranting interference.
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29. Accordingly, the instant proceeding being C.O. 2319 of
2019 along with all connected applications, if any, is hereby
dismissed and thus, disposed of without any order as to costs.
Consequently, stay order, if any, shall stand vacated.
28. Urgent photostat certified copy of this order, if applied
for, be given to the parties, upon compliance of necessary
formalities.
(Md. ShabbarRashidi, J.)
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