Shahraj & Others vs Murtaza & Others

Lok Pal Singh, J

Present civil revision is directed against the impugned order dated 12.01.2015 passed by Civil Judge (Senior Division) Rookree, Hardiwar in O.S. No. 32 of 2009 whereby learned trial court has decided issued no. 7 in relation to payment of court fee against the plaintiffs/revisionists.

Plaintiff/revisionist filed Original Suit No. 32 of 2009 with the averments that predecessor of the plaintiff were Zamindars, having agricultural and non agricultural land in village Baredi Rajputana Pargana & Tehsil Roorkee, District Haridwar. Father of the plaintiffs was the only son in the family, he had constructed some rooms (mud rooms) in the property, bearing Khasra No. 941/3 measuring 0.280 hectare (hereinafter referred as property in dispute) for keeping the agricultural equipments. In the year 1999, on the request of the defendants, father of the revisionists/plaintiffs gave the said property to the defendants on a license and it was settled that defendants will pay Rs. 12,000/- per annum as a license fee. Since, 2004, license fee was not paid by the defendants despite repetitive request made by the plaintiffs, then a registered notice was sent on 16.03.2009 to the defendants through the counsel , whereby the license of the defendants was cancelled and request was made to vacate the disputed property and possession of the same be handover to the plaintiffs. When defendants did not comply with the notice then plaintiffs constrained to file suit for mandatory injunction against defendants.

Defendants filed their written statements stating therein that defendants are not in possession of the property in dispute rather they are in possession of Khasra No. 951/02. It is further stated that defendants are in possession of Khasra No. 951/ 02 prior to abolition of Zamindari. They are poor persons and have constructed their houses under Indira Awas Scheme. It is further contended that in the year 1998 criminal case no.352 of 1998 was lodged by the plaintiffs against son of defendant no. 6, therefore, there was no occasion to grant license in the favour of the defendants in the year 1999. It is further contended that due to enmity suit has been filed against the defendants, on false grounds.

On the pleadings of the parties, trial court framed the several issues. Issue no. 7 pertains to as to whether the suit has been properly valued or not, and court fee is insufficient?

The revisionist is aggrieved by the decision rendered in Issue no. 7.

So far as valuation of the suit is concerned, it is observed by the trial court that in view of the order dated 08.07.2014 passed by the court, valuation of the suit was made Rs. 20,00,000/- (rupees twenty lakh) and said order has not been challenged by the plaintiff, which attained finality. Further, the suit was got amended by the plaintiffs.

The sole question remained before the trial court whether the court fee paid by the plaintiffs in the suit is insufficient? The trial court has considered the fact that plaintiff's father, who allegedly gave the license of the suit property to the defendants, passed away in the year 2002. Since 2004, the defendants are not paying the license fee to the plaintiffs/revisionists despite repetitive request and cancelled their license by notice dated 16.03.2009 and after lapse of 5 years suit has been filed. It is further observed that suit filed by the plaintiffs/revisionists cannot be considered suit for mandatory injunction rather relief, as sought by the plaintiff, appears to be suit for possession, and by means of mandatory injunction, plaintiffs are seeking possession of the property in dispute. The trial court, has placed reliance upon the judgment of Hon'ble Apex Court in the case of Severance and ors. vs. Benny Mathew & ors., reported in (2005) 2 SCC 572 and held that suit for mandatory injunction has not been filed in a reasonable time, and there is no promptness on the part of the plaintiff, therefore case does not come within the definition of license and possession of licensee rather it comes under unauthorized possession, therefore plaintiff has to seek decree of possession over the suit property. Having considered the provisions contained in Section 7(v) of the Court Fees Act, the trial court has held that the said suit is for possession therefore, plaintiff is obliged to pay ad valorem court fee on the relief claimed and directed him to pay ad valorem court fee.

Feeling aggrieved by order dated 12.01.2015, the plaintiffs/revisionists are before this Court.

Heard learned counsel for the parties and perused the material available on record.

Learned counsel for the plaintiffs/revisionists would contend that the trial court has illegally decided issue no.7 against plaintiffs/revisionists. In support of his submission, learned counsel for the plaintiff/revisionist placed reliance upon the judgments of Hon'ble Apex Court in the case of A. Nawabjohn & ors. vs. V.N. Subramaniyam reported in (2012) 7SCC 738 and Santlal Jain vs. Avtar Singh reported in AIR 1985 SC 2.

On the other hand, learned counsel for the respondents/defendants would contend that the trial court has committed no illegality in deciding the issue no. 7. It is further contended that after termination of the alleged license of the defendants in the year 2004, the revisionist preferred the suit in the year 2009 which itself shows that plaintiffs/revisionists were not vigilant and filed the suit with undue delay.

Perusal of the averments made in the plaint would reveal that plaintiffs themselves have contended that license was granted to the defendants by their father, who passed away in 2002, and suit has been instituted in the year 2009. However, no particular date has been mentioned in the plaint specifying on which date property was given on license @ Rs. 12,000/- per annum to the defendants. Further, perusal of the pleadings would reveal that suit has not been instituted within reasonable time. Defendants have denied the fact that they are the licensee of the plaintiffs rather they are in possession of Khasra No. 951/02 prior to abolition of Zamindari. Further, order dated 08.07.2014 whereby valuation of the suit was made Rs. 20,00,000/- (rupees twenty lakh) has not been challenged by the plaintiff which attained finality.

The trial court while deciding Issue no. 7, has placed reliance upon the judgment upon of Hon'ble Apex Court in the case of Joseph Severance and ors. (supra) and held that if suit filed by the licensor i.e. revisionists is promptitude and is within reasonable time, thus, by way of mandatory injunction, the licensor can evict the licensee but when the suit is not filed within reasonable time on the alleged license, the licensor is not entitled to get the decree of possession in the guise of mandatory injunction against whom decree is sought.

Perusal of the plaint averments would show that plaintiffs did not institute the suit promptly when defendants denied to handover the possession to the plaintiffs, more particularly, when defendants have clamed their own rights over the suit property and specifically have denied the alleged license granted by the plaintiffs' father in favour of the defendants. Prima facie plaintiffs have to adduce the evidence showing that they are the owner of the suit property and ever the license was granted to the defendants but no evidence has been adduced in this regard. Thus, plaintiffs have to pay ad valorem court fee seeking decree of possession, as the decree of possession cannot be granted in the guise of mandatory injunction.

In view of the above, I do not find any illegality or perversity in the findings recorded by the trial court while deciding Issue no. 7 and directing the plaintiffs to pay ad valorem court fee.

Present civil revision is devoid of merit and is liable to be dismissed. Same is dismissed.

No order as to costs.