Sant Ram vs Deep Ram and Others

Rajiv Sharma, J.—This Regular Second Appeal is directed against the judgment and decree dated 27.10.2007, passed by the learned Additional District Judge, Shimla in Civil Appeal No. 97-S/13 of 2005

Material facts necessary for adjudication of this Regular Second Appeal, are that the Respondent-Plaintiff, Kirpa Ram had instituted a suit for declaration and also for permanent prohibitory injunction with the averments that he and proforma Defendants were owners in possession qua land of their ancestors, comprised in Khasra No. 934/31, measuring 8-12 bighas, situated in Chack Lakhawati, as per jamabandi for the year 1990-91. During the settlement operation, in the year 1997-98, the staff of Revenue Department, in collusion with the Appellant-Defendant (hereinafter referred to as ''the Defendant'') divided the aforesaid Khasra No. 934/31 into two parts by denoting two separate Khasra numbers, i.e., Khasra No. 500, measuring 0-48-14 hectares and old Khasra No. 934/31 min, which was shown in revenue record of rights in the jamabandi in the ownership and possession of Plaintiff and proforma Defendants and separate Khasra number was shown as 499 in the ownership of Plaintiff and proforma Defendants, but in the column of possession, it has been recorded in the possession of Defendant Shri Sant Ram. The Defendant, on the strength of these entries, were trying to dislodge the Plaintiff from the aforesaid land by use of criminal force.

Written statement was filed on behalf of contesting Defendants No. 1 and 2 separately. On merits, it was contended by Defendant Sant Ram that revenue agency/department of settlement has rightly divided Khasra No. 934/31 into two parts and made two separate Khasra Nos. , i.e., Khasra No. 500 and 499. Khasra No. 499 has been shown in possession of the Defendant Sant Ram in accordance with the spot position. He also contended that he was coming in possession in continuous, hostile, peaceful and un-interrupted manner since 1989. He has also raised apple orchard. Defendant No. 2, State of Himachal Pradesh, also filed separate written statement. The issues were framed by the learned Civil Judge (Senior Division), Chopal on 04.10.2004. The learned trial Court dismissed the suit on 23rd August, 2005. The predecessor-in-interest of the Plaintiff, Kirpa Ram preferred an appeal before the learned Additional District Judge, Shimla against the judgment and decree dated 23.08.2005. It appears from the record that Shri Kripa Ram has died during the pendency of 1st appeal and his legal heir has been brought on record, as detailed in the memo of appeal. Plaintiff''s suit for possession of the suit land was decreed. Hence, this Regular Second Appeal.

Notice was issued to the Respondents on 11.01.2008. The Regular Second Appeal was admitted on the following substantial questions of law on 05.12.2008:

Whether once it has been proved that the Plaintiff was out of possession of the suit land from the last 15 years prior to the filing of the suit, i.e., since the year 1989, the suit for alleged declaration and injunction was not maintainable and was rightly dismissed by the learned first appellate court?

Whether the learned first appellate Court has committed an illegality by not appreciating that no proper court fee has been filed by the Plaintiff alongwith the plaint and nor the suit has been properly valued and the Plaintiff was required to pay the court fee according to the market value of the orchard/suit land?

Mr. Y.P. Sood, learned Counsel for the Appellant has vehemently argued that the learned Additional District Judge could not mould the relief by decreeing the suit for possession. He also argued that no proper court fee has been affixed and the suit was also not properly valued.

Mr. G.D. Verma, learned Senior Advocate for the Respondent has supported the judgment and decree dated 27.10.2007.

I have heard the learned Counsel for the parties and gone through the pleadings carefully.

Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence.

It will be apt at this stage to reproduce para-8 (c) of the plaint, which is integral part of the relief clause, which reads thus:

And for recovery of possession in case the Plaintiff and proforma-Defendants are dispossessed during the course of proceedings in the case, in the Court and for confirmation of possession.

Thus, it is evident that the Plaintiff has specifically asked for recovery of possession in case the Plaintiff and proforma-Defendants were dispossessed during the course of proceedings in the Court and for confirmation of possession. Moreover, it is open to the Court to mould the relief on the basis of facts and circumstances of the case. In this case, the relief for recovery of possession has been specifically prayed for. In view of this, the reasons adopted by the learned Additional District Judge, cannot be faulted with.

Now, the Court will advert to the second submission of Mr. Y.P. Sood, learned Counsel for the Appellant. The suit has been valued at Rs. 200/-. The court fee of Rs. 13/- has been affixed. The suit has been filed by the Plaintiff for possession of land without any reference to orchard. In fact, case of the Defendant was that he has raised the orchard. In this case, the suit of the Plaintiff falls within the ambit of Section 7(iv)(c) and not Section 7(v) of the Court Fees Act. According to the jamabandi for the year 1990-1991, the land revenue of the suit land comes to less than Rs. 1/-. Ten times, the land revenue would mean Rs. 10/-. On a suit valuing Rs. 10/-, ad valorem value comes to Rs. 1/-. Accordingly, the suit has been properly valued and the court fee has also been affixed in accordance with law. The learned 1st Appellate Court has correctly applied the ratio of Neelam Dass through R.K. Gupta v. Hirda Ram through Nemo 1975 SLJ HP 80 while determining the issue of valuation of suit.

Accordingly, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending application(s), if any. No costs.