Full Text
HIGH COURT OF DELHI
FAO(OS) 119/2024 & C.M.Nos.50430-50431/2024
BAKSHISH SINGH CHANDHOK AND ORS .....Appellants
Through: Mr.Kuljeet Rawal, Advocate.
Through: Dr.S.S.Hooda, Advocate.
Date of Decision: 02nd September, 2024
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
1. Present appeal has been filed challenging the order dated 8th July, 2024 passed in CS (OS) 2173/2015, whereby the learned Single Judge has directed the Appellants to deposit the entire balance court fee on ad-valorem basis in accordance with Section 7(iv)(b) of the Court Fees Act, 1970 (hereinafter referred to as the ‘Act’) on the premise that Appellants/ Plaintiffs have been ousted from the possession of the suit property by the Respondent/Defendant.
2. Learned counsel for the Appellants states that the subject suit has been filed by Appellant-Plaintiff No.1 and his now deceased mother Smt. Rabinder Kaur (Plaintiff No.2) against the sole Defendant seeking decree of partition i.e. 50% share in favour of Appellant-Plaintiff No.1; 25% share in favour of Plaintiff No.2 (i.e. now deceased mother) and rest 25% share in favour of Respondent/Defendant.
3. He states that the suit has been contested by the Respondent vide his written statement dated 15th October, 2015. He states that on 12th January, 2024, an objection was raised by the Respondent that without the payment of court fee and without seeking relief of possession, the subject suit would not be maintainable.
4. He states that on 8th July, 2024, attention of the Court was drawn to para 4 of the plaint wherein the Appellants have categorically asserted that the Appellants have been in possession of the property as they have been visiting and using the suit property. He further states that Appellants and Respondent are co-owners of the suit property though Respondent controls the property.
5. He states that the possession of one co-heir is considered, in law, as possession of all the co-heirs. He submits that the co-owner in possession, cannot render his possession adverse to the other co-owner not in possession, merely by any secret hostile animus on his own part, in derogation of the other co-owner/title holder. In support of his submission, he relies upon the judgment of this Court in Geeta Tandon vs. Sunil Gomber & Ors. 2023 SCC OnLine Del 2067, wherein it has been held as under:-
(iii) exercise of right of exclusive ownership openly and to the knowledge of the other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law. "
6. The principle on which court fees in a suit for partition is calculated is well settled. In Sushma Tehlan Dalal vs. Shivraj Singh Tehlan & Ors. (2011)
IV AD (Delhi) 341 it has been held as under:-
7. In the present case, the Appellants-Plaintiffs admit to their ouster from the possession of the suit property. They further admit that the Respondent-Defendant has not only changed the locks at the entrance of the suit property but is also forcing the Appellants-Plaintiffs to stay at a hotel whenever they visit Delhi, and therefore on their own assertions, are not in constructive or actual possession of the suit property. In this context, paragraphs 4 and 10 of the plaint are relevant and are reproduced hereinbelow:-
xxx xxx xxx
10. That the defendant is not letting the plaintiffs enter into the suit property and has also changed the locks to the entrance to the suit property, to which the plaintiffs always had duplicate keys. As a result whenever the plaintiffs and their family members visit Delhi, they are forced to stay at a hotel rather than staying at their own house of which they are the majority co-owners. The conduct of the defendant is causing great injustice to the plaintiffs and their family members.”
8. From the aforesaid averments, it is apparent that there is declaration of hostile animus by the Respondent-Defendant, who is in long and uninterrupted possession of the suit property and who also claims to exercise the right of exclusive ownership openly and to the knowledge of other coowners i.e. Appellants-Plaintiffs. Consequently, the triple test relied upon by learned counsel for the Appellants is satisfied in the present case.
9. As the Appellants-Plaintiffs themselves admit to their ouster from the possession of the suit property, the court fee payable shall be ad valorem in accordance with Section 7(iv)(b) of the Act and not Article 17(vi) of the Schedule II of the Act.
10. Accordingly, the present appeal being bereft of merit is dismissed along with the applications.
ACTING CHIEF JUSTICE TUSHAR RAO GEDELA, J SEPTEMBER 02, 2024