Full Text
HIGH COURT OF DELHI
Date of Decision: 9th December, 2019
AJAY MALIK & ORS ..... Plaintiffs
Through: Mr.D.R.Bhatia & Ms.Vasundhara Nayyar, Advocates
Through: Mr.Ashok Gurnani, Advocate for D-1 and D-2
Mr.S.K.Chaturvedi & Mr.Dinesh Singh, Advocates for D-3 & 5.
PRATEEK JALAN, J. (ORAL)
CPC)
JUDGMENT
1. The suit has been filed by the plaintiffs for the following reliefs: “(a) Pass a preliminary decree of partition in favour of the Plaintiffs and against the Defendants thereby declaring that the Plaintiffs are the co-owners/cosharers to the extent of 2/3rd share in the property bearing No.C-2/28, Model Town, Delhi and after passing a preliminary decree thereby holding that the Plaintiffs are the co-owners/co-sharers to the 2019:DHC:6787 extent of 2/3rd share and thereafter, a final decree of partition may kindly be passed in accordance with law, thereby separating l/3rd share of the Plaintiffs No.l and 2 and share of the Plaintiff No.3 by metes and bounds in the aforesaid property in the interest of justice.
IN THE ALTERNATIVE If the aforesaid property cannot be partitioned and demarcated by metes and bounds amongst the parties hereto, the Hon‟ble Court may order sale of the said property and pay the amount so realized amongst the Plaintiffs and the Defendants in accordance with their shares i.e. l/3rd of the amount in favour of the Plaintiffs No.l and 2; 1/3rd of the amount in favour of the Plaintiff No.3; and 1/3rd of the amount in favour of the Defendants. (b) Pass a decree for the amount of Rs.24,00,000/- (Rupees Twenty Four Lakhs Only) in favour of the Plaintiffs and against the Defendants towards the damages/mesne profits and the Defendants be directed to pay a sum of Rs.3,00,000/- (Rupees Three Lakhs Only) to the Plaintiffs effective from 01st May, 2015 till the time the suit property is partitioned and the portion of the Plaintiffs is demarcated by metes and bounds.
(c) Pass a decree of permanent injunction against the
Defendants, thereby restraining the said Defendants, their agents, attorneys, representatives and any other persons claiming on their behalf, from parting with the possession of the property or creating any encumbrances or otherwise dispose of the property bearing No.C-2/28, Model Town, Delhi, or any part thereof.
(d) Award cost of the suit to the Plaintiffs; and
2. By an order dated 16.05.2018, issues were framed. Issue No.1 reads as follows: “1. Whether the plaintiffs have not paid the requisite court fees along with the plaint? If not, what is the effect thereof? OPD-1, 2 & 4”
3. The present application was thereafter filed by defendant No.2 for an order treating the above issue as a preliminary issue. By an order dated 19.02.2019, the application was allowed, and issue No.1 was directed to be treated as a preliminary issue and/or an objection under Order VII Rule 11 of the Code of Civil Procedure, 1908 [hereinafter referred to as “the CPC”].
4. I have heard learned counsel for the parties.
5. Mr.Ashok Gurnani, learned counsel for the applicant submitted that although a claim of joint ownership and the relief of partition can normally be sought by a co-owner upon payment of fixed court fees as joint possession would be presumed, the position is different when the plaint itself discloses that the plaintiffs have been ousted from the possession of the suit property. In such a case, the plaintiff is required to pay ad valorem court fees on his/her share of the suit property. Learned counsel cited the decision of a Coordinate Bench of this Court in Smt.Prakash Wati vs. Smt.Dayawanti & Anr., AIR 1991 Delhi 48, and the Division Bench judgment in Ramesh Kumar Bhagchandka vs. Mahesh Kumar Bhagchandka & Ors., 2014 IX AD (Delhi) 68. He drew my attention to paragraphs 11 to 14 and paragraph 17 of the plaint to contend that the plaintiffs in the present case have in fact proceeded on the basis that they have been ousted from possession.
6. Mr.D.R.Bhatia, learned counsel for the plaintiffs/non-applicants argued that no plea of ouster can be inferred from the plaint, and that the mere fact that the plaintiffs are not in physical possession does not lead to the conclusion that they are required to pay ad valorem court fees. He cited the judgments of Coordinate Benches in Tara Chand Gaur vs. Satish Chand Sharma (2019) 256 DLT 61 and Uma Ghate (Ms.) vs. Mr.Umesh Phalpher (2017) I AD (Delhi) 359, as well as a Division Bench judgment in Saroj Salkan vs. Sanjeev Singh and Ors. 155 (2005) DLT 300.
7. A perusal of the aforesaid judgments cited by both the parties makes it clear that a plaintiff claiming partition on the basis of joint ownership of the suit property is not required to pay ad valorem court fees, except in the event that the plaint itself discloses that the plaintiff has been ousted from the property.
8. The judgment of this Court in Smt.Prakash Wati (supra) makes this position clear: “3. In para 12 of the plaint, it was pleaded that the plaintiff and defendant No.3 came to the suit property as usual but they were threatened and were physically attacked causing serious injuries to defendant No.3 and defendant No.1 and his family members had threatened the plaintiff and the remaining defendants and warned them that they should not come to the property in suit. It is pleaded in para 13 that till July 4, 1990 the suit property was being used jointly amicably by all the coowners who were in joint possession. Now the question which arises for consideration is whether from these pleadings could it be said that on the date the suit was filed the plaintiff was in joint possession of the property in question? It is clear from the pleadings that the plaintiff was never in physical possession of any portion of the property in question and since July 4, 1990, they are being not allowed to even visit the property by defendant No.1 and her family members. In view of these pleadings it cannot be inferred that the plaintiff is in joint possession of any portion of the property in question. Hence, the plaintiff has to, in my opinion, pay the court-fee on the value of her share for seeking the relief of partition and for possession of her separated share. In re Nanda Lal Mukherjee, AIR 1932 Calcutta 227, it has been held that if a person who is entitled to claim partition of the property is out of possession of his share he has to pay the Court-fee on the value of his share for seeking relief of possession of his share by partition… xxxx xxxx xxxx …In the present case, taking the averments made in the plaint on their face themselves it is quite clear that the plaintiff has alleged that she has been ousted from the house as she is not being permitted to even visit the house by defendant No.1. In other words, the plaintiff cannot be treated to be even in joint possession of the property in question.” [Emphasis supplied]
9. In Ramesh Kumar Bhagchandka (supra), the Division Bench stated the principle of law in the following terms:- “18. We need not make a cornucopia of the case law for it would be better for us to state the principle of law applicable. Where a property is admittedly joint property, possession by one joint owner has to be treated in law as possession on behalf of all and a suit for partition of such a property would not be having a claim by the plaintiff, to be put in possession of the property. The claim would be to severe the jointness by partitioning the property and allocating separated shares with possession thereof to the joint owners with reference to the share of each in the whole property. But where title is not joint and has to be established with the property standing in the name of an individual, the principle that the possession of the recorded owner would be treated in law as possession on behalf of the plaintiff would not be attracted and in such a case the plaintiff would have to first succeed on title followed by possession and hence ad-valorem court fee has to be paid.
20. The reasoning of the two decisions would be the same as noted by us in paragraph 18 i.e. the plaintiff would have to first prove a joint interest in the property from which he was ousted and thereafter claim possession.
21. It is trite that the same principles govern a claim for partition and possession alleging the property to be belonging to the joint family.
22. To put it pithily: where meaningfully read the averments in the plaint would show that the plaintiff admits ouster by the defendants to keep him away from immovable property and the ouster is premised on the plaintiff’s right, title or interest in the property being denied; title, right or interest has to be established and only thereupon partition claimed followed by possession. In the decision reported as 20 Cal. 762 Mohendra Chandra Ganguli Vs. Ashutosh Ganguli it was held that if it was a case of complete ouster, a claim of being a co-sharer in an immovable property and hence partition with recovery of possession as the prayer would warrant ad-valorem court fee to be paid on the plaint.”
10. The judgment of another Coordinate Bench in Uma Ghate (supra) cited by Mr.Bhatia, is to the same effect. In fact, in paragraph 23 of the judgment, it was held that the averments in the plaint must be read as a whole to determine whether the plaintiff himself pleaded ouster/dispossession from the suit property. On facts, it was held that she had not. The Division Bench in Saroj Salkan (supra), also cited by Mr.Bhatia, referred to the judgment of the Supreme Court in Jagannath Amin vs. Seetharama (2007) 1 SCC 694, wherein also an exception from the normal presumption of joint possession is provided for, if clear and specific averments in the plaint make out that the plaintiffs were excluded from joint possession of which they were entitled in law.
11. The other judgment relied upon by Mr.Bhatia is Tara Chand (supra). In paragraph 6 thereof, a Coordinate Bench of this Court held that every co-owner in actual and physical possession of the whole or part of the property must be taken to be in deemed or constructive possession thereof. It was further held that the question of ouster from such joint possession is one of fact, to be determined at trial. In the said judgment, the question of removal from possession could not be derived from a reading of the plaint itself, and had to be proven.
12. The question to be determined at this stage therefore is whether, in the present case, the plaint itself discloses facts which establish ouster of the plaintiff from possession, making it inconsistent with a presumption of joint possession.
13. Paragraphs 11, 12, 13, 14 & 17 of the plaint, and the relief claimed in prayer (b) thereof [extracted in paragraph 2 above] are relevant for adjudicating this question. The aforementioned pleadings in the plaint read as follows: “11. That though the Plaintiffs have 2/3rd undivided share in the said property, the Defendants have been dealing with the matters relating to the said property exclusively and without consulting the Plaintiffs.
12. That since August, 2014, the Plaintiffs observed a change in the attitude of the Defendants inasmuch as they were making attempts to sideline the Plaintiffs totally and absolutely in respect of matters relating to the said property. However, giving importance to the family interest, the Plaintiffs did not make any issue out of such conduct of the Defendants.
13. That, however, the things turned to worst in the month of August, 2014 inasmuch as when the Plaintiffs visited the said property in the second week of August, 2014, the Defendants have restrained the Plaintiffs from entering the said property.
14. That alarmed at the said conduct of the Defendants, the Plaintiffs again visited the said property in the third week of August, 2014 and asserted their rights in the said property and but the Defendant No.2 who having acted on behalf of the other Defendants, however, pushed out the Plaintiffs from the said property. The Plaintiffs then demanded that the property be partitioned and the share of the Plaintiffs be demarcated such that they can enjoy their shares in the property absolutely. The Plaintiffs further made clear that in case the said property was not partitioned, the Defendants shall be liable to pay damages/mesne profits to the Plaintiffs at the prevailing market rate of rent without prejudice to the right of the Plaintiffs to take any other action as per law. The Plaintiffs did not receive any response from the Defendants to their request as aforesaid, and in fact, the Defendant No.2 has threatened that in case the Plaintiffs visit the said property again or make any such demands, the consequences would be severe for the Plaintiffs.
17. That as submitted above, the Defendants were asked to agree to the partition of the suit property and in the event of their not agreeing to do so, the Defendants would be jointly and severally liable to pay the damages/mesne profits as per the prevailing market rate. The said property could easily fetch a rental of Rs.4,50,000/- per month for similarly placed property in the locality and the Plaintiffs being owners of 2/3rd undivided share in the said property, they would be entitled to Rs.3,00,000/- per month i.e. Rs. 1,50,000/- to Plaintiffs No.l and 2 and Rs. 1,50,000/- to Plaintiff No.3. Thus, the Plaintiffs seek a decree against the Defendants for payment of damages/mesne profits jointly and severally at the above said rate effective from 01st September, 2014. The Plaintiffs thus claims a sum of Rs.24,00,000/- for the period upto 30th April, 2015 towards damages/mesne profits from the Defendants jointly and severally. The Plaintiffs further submit that the Defendants be directed to pay the sum of Rs.3,00,000/- per month i.e. Rs. 1,50,000/- to Plaintiffs No.l and 2 and Rs. 1,50,000/- to Plaintiff No.3 effective from 01st May, 2015 jointly and severally till the time the said property is partitioned and the portion of the Plaintiffs is demarcated by metes and bounds.”
14. On a meaningful reading of the aforesaid averments, I find that the plaintiffs have clearly alleged that their possession of the suit property has been disturbed, and they are no longer in possession thereof. The averment in paragraph 11 is that the defendants have been dealing with the said property “exclusively and without consulting the plaintiffs”. To similar effect is the contention in paragraph 12, and the pleading in paragraph 13 is that the defendants have “restrained the plaintiffs from entering the suit property”. In paragraph 14, the plaintiffs have made out a case that the defendants have threatened them from visiting the property again. The plaintiffs’ claim in paragraph 17 for damages/mesne profits from 01.09.2014 [amounting to ₹24,00,000/- for the period until institution of the suit] is also inconsistent with the plea of joint possession.
15. I am therefore satisfied that the plaintiffs have pleaded clear exclusion from possession. The plaintiffs are thus required to pay ad valorem court fees on the share claimed by them in the suit property. In terms of Order VII Rule 11(c) of the CPC, the plaintiffs are granted an opportunity to recompute the valuation of the present suit in terms of this order. The plaintiffs will file an amended plaint with the requisite amendments to paragraph 21 of the plaint within six weeks, alongwith the appropriate court fees.
16. I.A. No.8284/2018 stands disposed of in these terms. List the suit before the Joint Registrar on 03.02.2020, for further proceedings in terms of this order.
PRATEEK JALAN, J DECEMBER 09, 2019 „hkaur‟/s