'
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2758 OF 2013
(Arising out of SLP(C)No.15094/2011)
SANTOSH RAMCHANDRA TADSARE ...Appellant
VERSUS
SUBHASH RAMCHANDRA GUJJAR AND ORS. ...Respondents
O R D E R
Leave granted.
Having failed to convince the learned Single Judge of the
Bombay High Court to set aside the order passed by 2nd Joint Civil
Judge (Junior Division), Chiplun, Maharashtra (hereinafter referred to
as, 'the trial Court') rejecting his prayer for adjudication of the
preliminary issue relating to pecuniary jurisdiction of that Court,
the appellant has filed this appeal.
The appellant purchased the suit property from respondent
No.2 - Vivekbhai Lalsingh Vichare by registered sale deed dated
20.5.2009 for a sum of Rs.14,25,000/- and raised construction.
Respondent No.1, who is the son of respondent No.3 (original owner),
filed Civil Suit No.78/2010 for partition and separate possession of
1/2 undivided share in the suit property. He impleaded the appellant's
vendor as defendant No.1, the appellant as defendant No.2 and his
father Shri Ramchandra Shivram Gujjar as defendant No.3 and pleaded
that the sale deed executed by respondent No.2 in favour of the
appellant was illegal and the latter does not have any right over thesuit property.
He further pleaded that by taking advantage of the old
age of his father (respondent No.3), respondent No.2 persuaded him to
sell the suit property, got its user changed from agricultural to non-
agricultural and then sold the same to the appellant.
He also
questioned the legality of the permission obtained by the appellant
for raising construction by asserting that no such permission could
have been granted in respect of agricultural land.
However, he neither
prayed for cancellation of the sale deed executed by respondent No.2
in favour of the appellant nor questioned the permission granted bythe competent authority for raising construction.
For the sake of
reference, the relevant portions of paragraphs 2, 4, 5, 6 and the
prayer clauses (a), (b) and (c) of the plaint are reproduced below:
"2. ................Defendant No. 1 is husband of Mrs.
Vanshri Vivekbhai Vichare who is daughter of Defendant
No.3. Thus, relations between plaintiff and defendants are
stated here which show that they are related to each other.
4. ............. Due to plaintiff's mother's death
defendant No.3 started feeling lonely and became weak
emotionally. He suffered with high blood pressure and
shaking of his body. In the year 2000, Defendant No.l went
to Chiplun and met Defendant No.2. At that time, Defendant
No.3 was thinking of giving suit properties to Shri Arvind
Ganapat Lakeshri for developing. That time, Defendant No.l
convinced Defendant No.3 that if he gives the suit property
to outsiders or to third party then they will eat all the
profit and he will suffer irreparable loss. Then Defendant
No. 1 himself informed Shri Lakeshri that he himself is
developing the properties so that he will not take any
objection. This was told to Defendant No.3 by Defendant
No.l. Defendant No.l became successful in convincing
Defendant No.3 that his own son-in-law will do the
construction which will help his daughter financially and
the suit properties will also remain in his name with this
background and with excuse of making development agreement,
Defendant No.2 executed sale deed of suit properties in his
favour on dt,22.01.09 with the help of Defendant no.3 who
put his signature as vendor. ..............
5. Now the name of Defendant No. 1 is on revenue records.
Taking advantage of this fact, Defendant No. 1 got
transferred the suit properties to non-agricultural status.
But the status of the suit land as non-agricultural and
also the sale deed of the suit properties in which has
untransferred or unpartitioned share of the plaintiff is
totally illegal. Defendant No.l has now transferred the
said disputed lands to Defendant No.2 on dated 21.05.2009
on sale deed. The said sale deed was executed for the
amount of Rs.14,25,000/- (Rupees Fourteen lacs twenty five
thousand only).
6. After the execution of the said sale deed, Defendant
No.2 has started construction work on the disputed land
after getting necessary permissions for construction.
Presently the construction work is at the centering fixing
stage on the first floor. In fact, the share of plaintiff
in the suit properties is not transferred to the Defendant
No.3. But Defendants have illegally taken permissions and
other certificates like non-agricultural use by taking
advantage of entry of the name in revenue records which is
also done by present in facts falsely. Therefore, approval
for starting construction, certificate of NAC and other
permissions are not binding on the plaintiff.
...................."
Prayer clauses
"(a) order for part partition of the suit properties and
declaring l/2 share of the suit properties in the name of
plaintiff and further order for handing over open and
peaceful possession to the plaintiff of his share.
(b) Order for partition to be effected by Respondent
Collector and handing over the possession of plaintiffs
share to the plaintiff under supervision of respondent /
Collector / District Officer.
(c) Order to demolish the construction done by Defendant
No.2 in the disputed land."
Along with the suit, respondent No.1 filed an application
for temporary injunction. On receipt of the notice of the application,
the appellant filed an application without mentioning the particular
provision and pleaded that the suit does not reflect correct valuation
of the property and this was done to avoid payment of court fees and
to bring the suit within the jurisdiction of the trial Court.
He
further pleaded that the current market value of the suit property was
Rs.21,25,000/- and value of the construction which was sought to be
demolished was Rs.70,00,000/- and, as such, the trial Court did not
have the pecuniary jurisdiction to entertain the same. He prayed that
a preliminary enquiry be conducted on the issue of court fees and
pecuniary jurisdiction of the trial Court.
The trial Court considered the rival contentions, referred
to Section 6(v) and (vii) of the Bombay Court Fees Act, 1959 (for
short, 'the 1959 Act') as also Section 8 of the Suits Valuation Act,
1887, as applicable to the State of Maharashtra, and held that the
suit for partition was rightly valued in terms of Section 6(vii) and
the court fees paid by respondent No.1 was adequate. The trial Court
further held that it has the jurisdiction to entertain the suit.
The appellant challenged the order of the trial Court by
filing a petition under Article 227 of the Constitution, which was
dismissed by the learned Single Judge by recording a cryptic order. He
opined that as per the averment contained in the plaint, the suit
property was agricultural and, therefore, valuation done by respondent
No.1 was proper and the court fees paid by him was adequate.
We have heard learned counsel for the parties and carefully
perused the record.
Section 6(v) and (vii) of the 1959 Act, which has
bearing on the decision of the question raised in this appeal, reads
as under:
"(6) Computation of fees payable in certain suits -
The
amount of fee payable under this Act in the suits next
hereinafter mentioned shall be computed as follow:
(i) to (iv) xxx xxx xxx
(v) For the possession of land, houses and gardens - In
suits for the possession of land, houses and gardens --
according to the value of the subject-matter; and such
value shall be deemed to be where the subject-matter is a
house or garden -- according to the market value of the
house or garden and where the subject-matter is land and -
(a) where the land is held on settlement for a
period not exceeding thirty years and pays the full
assessment to Government -- a sum equal to forty
times the survey assessment;
(b) Where the land is held on a permanent
settlement, or on a settlement for any period
exceeding thirty years, and pays full assessment to
Government -- a sum equal to eighty times the
survey assessment; and
(c) where the whole or any part of the annual
survey assessment is remitted -- a sum computed
under sub-paragraph (a) or sub-paragraph (b),as the
case may be, in addition to eighty times the
assessment or, the portion of assessment so
remitted;
(vi) xxx xxx xxx
(vii) For share in joint property -
In suit for partition
and separate possession of a share of joint family property
or of joint property, or to enforce a right to a share in
any property on the ground that it is joint family property
or joint property whether or not the plaintiff is in actual
or constructive possession of the property of which he
claims to be a co-parcener or co-owner-according to the
value of the share in respect of which the suit is
instituted;
Explanation :- For the purposes of this paragraph, if the
property in which a share is claimed consists of or
includes any land assessed to land revenue for the purpose
of agriculture, the value of such land shall be deemed to
be the value as determined under paragraph (v) of this
section.
(viii) to (xii) xxx xxx xxx"
A reading of the above-reproduced provisions make it clear
that in terms of the explanation appearing below Section 6(vii), the value of the land assessed to land revenue for the purpose of
agriculture shall be deemed to be the value as determined under
Section 6(v).
If the land sold by respondent No.2 to the appellant was
agricultural, then the view taken by the trial Court and the learned
Single Judge cannot be faulted.
However, the averments contained in
paragraphs 2, 4, 5 and 6 of the plaint leave no manner of doubt that
despite the assertion of respondent No.1 that the suit property
continues to be agricultural, it is clear that the same had already
been converted into non-agricultural.
The statement contained in
paragraph 5 of the plaint unmistakably shows that respondent No.2 had
converted the suit property from agricultural to non-agricultural and
the same was sold to the appellant as non-agricultural property.
If
that was not so, the competent authority would not have given
permission to the appellant to raise construction over the suit
property.
In the premise aforesaid, we hold that the trial Court and
the High Court committed grave error by holding that the valuation of
the suit property done by respondent No.1 was correct and the trial
Court had the jurisdiction to entertain the suit.
In the result, the appeal is allowed, the impugned order as
also the one passed by the trial Court are set aside and
the matter is
remitted to the trial Court for deciding the issue of jurisdiction
afresh after requiring respondent No.1 to pay court fees keeping in
view the fact that suit property was non-agricultural.
The parties are directed to appear before the trial Court
on May 13, 2013.
The Registry is directed to send a copy of this order to
2nd Joint Civil Judge (Junior Division), Chiplun, Maharashtra by fax.
....................J.
(G.S. SINGHVI)
....................J.
(KURIAN JOSEPH)
NEW DELHI;
March 18, 2013.
ITEM NO.46 COURT NO.3 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).15094/2011
(From the judgement and order dated 24/03/2011 in WP No.1388/2011 of The
HIGH COURT OF BOMBAY)
SANTOSH RAMCHANDRA TADSARE Petitioner(s)
VERSUS
SUBHASH RAMCHANDRA GUJJAR AND ORS. Respondent(s)
(With prayer for interim relief and office report )
Date: 18/03/2013 This Petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE G.S. SINGHVI
HON'BLE MR JUSTICE KURIAN JOSEPH
For Petitioner(s) Mr. Amol Chitale, Adv.
For Respondent(s) Mr. Heshu Kayina, Adv.
UPON hearing counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed order.
The parties are directed to appear before the trial Court
on May 13, 2013.
The Registry is directed to send a copy of this order to
2nd Joint Civil Judge (Junior Division), Chiplun, Maharashtra by fax.
|(Parveen Kr.Chawla) | |(Phoolan Wati Arora) |
|Court Master | |Court Master |
| | | |
(signed order is placed on the file.)
-----------------------
6
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2758 OF 2013
(Arising out of SLP(C)No.15094/2011)
SANTOSH RAMCHANDRA TADSARE ...Appellant
VERSUS
SUBHASH RAMCHANDRA GUJJAR AND ORS. ...Respondents
O R D E R
Leave granted.
Having failed to convince the learned Single Judge of the
Bombay High Court to set aside the order passed by 2nd Joint Civil
Judge (Junior Division), Chiplun, Maharashtra (hereinafter referred to
as, 'the trial Court') rejecting his prayer for adjudication of the
preliminary issue relating to pecuniary jurisdiction of that Court,
the appellant has filed this appeal.
The appellant purchased the suit property from respondent
No.2 - Vivekbhai Lalsingh Vichare by registered sale deed dated
20.5.2009 for a sum of Rs.14,25,000/- and raised construction.
Respondent No.1, who is the son of respondent No.3 (original owner),
filed Civil Suit No.78/2010 for partition and separate possession of
1/2 undivided share in the suit property. He impleaded the appellant's
vendor as defendant No.1, the appellant as defendant No.2 and his
father Shri Ramchandra Shivram Gujjar as defendant No.3 and pleaded
that the sale deed executed by respondent No.2 in favour of the
appellant was illegal and the latter does not have any right over thesuit property.
He further pleaded that by taking advantage of the old
age of his father (respondent No.3), respondent No.2 persuaded him to
sell the suit property, got its user changed from agricultural to non-
agricultural and then sold the same to the appellant.
He also
questioned the legality of the permission obtained by the appellant
for raising construction by asserting that no such permission could
have been granted in respect of agricultural land.
However, he neither
prayed for cancellation of the sale deed executed by respondent No.2
in favour of the appellant nor questioned the permission granted bythe competent authority for raising construction.
For the sake of
reference, the relevant portions of paragraphs 2, 4, 5, 6 and the
prayer clauses (a), (b) and (c) of the plaint are reproduced below:
"2. ................Defendant No. 1 is husband of Mrs.
Vanshri Vivekbhai Vichare who is daughter of Defendant
No.3. Thus, relations between plaintiff and defendants are
stated here which show that they are related to each other.
4. ............. Due to plaintiff's mother's death
defendant No.3 started feeling lonely and became weak
emotionally. He suffered with high blood pressure and
shaking of his body. In the year 2000, Defendant No.l went
to Chiplun and met Defendant No.2. At that time, Defendant
No.3 was thinking of giving suit properties to Shri Arvind
Ganapat Lakeshri for developing. That time, Defendant No.l
convinced Defendant No.3 that if he gives the suit property
to outsiders or to third party then they will eat all the
profit and he will suffer irreparable loss. Then Defendant
No. 1 himself informed Shri Lakeshri that he himself is
developing the properties so that he will not take any
objection. This was told to Defendant No.3 by Defendant
No.l. Defendant No.l became successful in convincing
Defendant No.3 that his own son-in-law will do the
construction which will help his daughter financially and
the suit properties will also remain in his name with this
background and with excuse of making development agreement,
Defendant No.2 executed sale deed of suit properties in his
favour on dt,22.01.09 with the help of Defendant no.3 who
put his signature as vendor. ..............
5. Now the name of Defendant No. 1 is on revenue records.
Taking advantage of this fact, Defendant No. 1 got
transferred the suit properties to non-agricultural status.
But the status of the suit land as non-agricultural and
also the sale deed of the suit properties in which has
untransferred or unpartitioned share of the plaintiff is
totally illegal. Defendant No.l has now transferred the
said disputed lands to Defendant No.2 on dated 21.05.2009
on sale deed. The said sale deed was executed for the
amount of Rs.14,25,000/- (Rupees Fourteen lacs twenty five
thousand only).
6. After the execution of the said sale deed, Defendant
No.2 has started construction work on the disputed land
after getting necessary permissions for construction.
Presently the construction work is at the centering fixing
stage on the first floor. In fact, the share of plaintiff
in the suit properties is not transferred to the Defendant
No.3. But Defendants have illegally taken permissions and
other certificates like non-agricultural use by taking
advantage of entry of the name in revenue records which is
also done by present in facts falsely. Therefore, approval
for starting construction, certificate of NAC and other
permissions are not binding on the plaintiff.
...................."
Prayer clauses
"(a) order for part partition of the suit properties and
declaring l/2 share of the suit properties in the name of
plaintiff and further order for handing over open and
peaceful possession to the plaintiff of his share.
(b) Order for partition to be effected by Respondent
Collector and handing over the possession of plaintiffs
share to the plaintiff under supervision of respondent /
Collector / District Officer.
(c) Order to demolish the construction done by Defendant
No.2 in the disputed land."
Along with the suit, respondent No.1 filed an application
for temporary injunction. On receipt of the notice of the application,
the appellant filed an application without mentioning the particular
provision and pleaded that the suit does not reflect correct valuation
of the property and this was done to avoid payment of court fees and
to bring the suit within the jurisdiction of the trial Court.
He
further pleaded that the current market value of the suit property was
Rs.21,25,000/- and value of the construction which was sought to be
demolished was Rs.70,00,000/- and, as such, the trial Court did not
have the pecuniary jurisdiction to entertain the same. He prayed that
a preliminary enquiry be conducted on the issue of court fees and
pecuniary jurisdiction of the trial Court.
The trial Court considered the rival contentions, referred
to Section 6(v) and (vii) of the Bombay Court Fees Act, 1959 (for
short, 'the 1959 Act') as also Section 8 of the Suits Valuation Act,
1887, as applicable to the State of Maharashtra, and held that the
suit for partition was rightly valued in terms of Section 6(vii) and
the court fees paid by respondent No.1 was adequate. The trial Court
further held that it has the jurisdiction to entertain the suit.
The appellant challenged the order of the trial Court by
filing a petition under Article 227 of the Constitution, which was
dismissed by the learned Single Judge by recording a cryptic order. He
opined that as per the averment contained in the plaint, the suit
property was agricultural and, therefore, valuation done by respondent
No.1 was proper and the court fees paid by him was adequate.
We have heard learned counsel for the parties and carefully
perused the record.
Section 6(v) and (vii) of the 1959 Act, which has
bearing on the decision of the question raised in this appeal, reads
as under:
"(6) Computation of fees payable in certain suits -
The
amount of fee payable under this Act in the suits next
hereinafter mentioned shall be computed as follow:
(i) to (iv) xxx xxx xxx
(v) For the possession of land, houses and gardens - In
suits for the possession of land, houses and gardens --
according to the value of the subject-matter; and such
value shall be deemed to be where the subject-matter is a
house or garden -- according to the market value of the
house or garden and where the subject-matter is land and -
(a) where the land is held on settlement for a
period not exceeding thirty years and pays the full
assessment to Government -- a sum equal to forty
times the survey assessment;
(b) Where the land is held on a permanent
settlement, or on a settlement for any period
exceeding thirty years, and pays full assessment to
Government -- a sum equal to eighty times the
survey assessment; and
(c) where the whole or any part of the annual
survey assessment is remitted -- a sum computed
under sub-paragraph (a) or sub-paragraph (b),as the
case may be, in addition to eighty times the
assessment or, the portion of assessment so
remitted;
(vi) xxx xxx xxx
(vii) For share in joint property -
In suit for partition
and separate possession of a share of joint family property
or of joint property, or to enforce a right to a share in
any property on the ground that it is joint family property
or joint property whether or not the plaintiff is in actual
or constructive possession of the property of which he
claims to be a co-parcener or co-owner-according to the
value of the share in respect of which the suit is
instituted;
Explanation :- For the purposes of this paragraph, if the
property in which a share is claimed consists of or
includes any land assessed to land revenue for the purpose
of agriculture, the value of such land shall be deemed to
be the value as determined under paragraph (v) of this
section.
(viii) to (xii) xxx xxx xxx"
A reading of the above-reproduced provisions make it clear
that in terms of the explanation appearing below Section 6(vii), the value of the land assessed to land revenue for the purpose of
agriculture shall be deemed to be the value as determined under
Section 6(v).
If the land sold by respondent No.2 to the appellant was
agricultural, then the view taken by the trial Court and the learned
Single Judge cannot be faulted.
However, the averments contained in
paragraphs 2, 4, 5 and 6 of the plaint leave no manner of doubt that
despite the assertion of respondent No.1 that the suit property
continues to be agricultural, it is clear that the same had already
been converted into non-agricultural.
The statement contained in
paragraph 5 of the plaint unmistakably shows that respondent No.2 had
converted the suit property from agricultural to non-agricultural and
the same was sold to the appellant as non-agricultural property.
If
that was not so, the competent authority would not have given
permission to the appellant to raise construction over the suit
property.
In the premise aforesaid, we hold that the trial Court and
the High Court committed grave error by holding that the valuation of
the suit property done by respondent No.1 was correct and the trial
Court had the jurisdiction to entertain the suit.
In the result, the appeal is allowed, the impugned order as
also the one passed by the trial Court are set aside and
the matter is
remitted to the trial Court for deciding the issue of jurisdiction
afresh after requiring respondent No.1 to pay court fees keeping in
view the fact that suit property was non-agricultural.
The parties are directed to appear before the trial Court
on May 13, 2013.
The Registry is directed to send a copy of this order to
2nd Joint Civil Judge (Junior Division), Chiplun, Maharashtra by fax.
....................J.
(G.S. SINGHVI)
....................J.
(KURIAN JOSEPH)
NEW DELHI;
March 18, 2013.
ITEM NO.46 COURT NO.3 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).15094/2011
(From the judgement and order dated 24/03/2011 in WP No.1388/2011 of The
HIGH COURT OF BOMBAY)
SANTOSH RAMCHANDRA TADSARE Petitioner(s)
VERSUS
SUBHASH RAMCHANDRA GUJJAR AND ORS. Respondent(s)
(With prayer for interim relief and office report )
Date: 18/03/2013 This Petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE G.S. SINGHVI
HON'BLE MR JUSTICE KURIAN JOSEPH
For Petitioner(s) Mr. Amol Chitale, Adv.
For Respondent(s) Mr. Heshu Kayina, Adv.
UPON hearing counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed order.
The parties are directed to appear before the trial Court
on May 13, 2013.
The Registry is directed to send a copy of this order to
2nd Joint Civil Judge (Junior Division), Chiplun, Maharashtra by fax.
|(Parveen Kr.Chawla) | |(Phoolan Wati Arora) |
|Court Master | |Court Master |
| | | |
(signed order is placed on the file.)
-----------------------
6
