High Court · 2012

5. Having received information about the said illegal activities o n 07.06.2005 the respondent as the authorized agent to the original Pattadar vis ited the said land and on 08.06.2005 the respondent requested the appellant-defe ndants to vacate the suit land by removing the construction and other structures therefrom. But they refused to do so, hence the suit was filed for declaration of right, title and interest of the original Pattadar over the suit land as well as recovery of the khas possession by removing all structures that have been pu t by the appellant-defendants, couched with a prayer for permanent injunction re straining the appellant and its members from interfering with the peaceful posse ssion of the original pattadar. 6. The appellant-defendant filed the Written Statement stating and admitting the status of Jai Narayan Agarwala, as the Pattadar. It is further sta ted that there is a permanent RCC canopy on the platform as constructed on the s aid land. They stated that the original Pattadar offered them to sell the suit l and and they somehow managed the amount of the consideration of the land and han ded over the amount to Jai Narayan Agarwala, the original Pattadar. They further stated that total value of the land was 48,0000/- and they paid Rs.45,000/-. Th e original Pattadar also executed one Kuchaa sale deed in presence of many peopl e and with the help of lat mandal. He also handed over the possession to the app ellant-defendants on 20.08.1990. They further stated that they requested Jai Nar ayan Agarwala, the original Pattadar to execute the sale deed on receiving the r emaining amount of Rs.3,000/- but he did not turn up. He submitted that the wife of Jai Narayan Agarwala has instituted a false case against them and as such th e said suit may be dismissed. 7. e framed : 1. 2. 3. 4. nd? On consideration of the rival pleadings the following issues wer Whether there is any cause of action for the present suit? Whether the suit is maintainable in its present form? Whether the suit is properly valued and court fes paid is sufficient? Whether Jai Narayan Agarwala was right, title, interest over the suit la

4.(A). Whether the plaintiff Usha Rani has Locus Standi to file the sui t on the basis of the power of attorney? Whether Jai Narayan Agarwala sold the suit land to the defendant Samity

5. ? 6. is entitled to a decree of Khass possession of the suit land? 7. 8. Whether the plaintiff is entitled to the relief as prayed for? What relives, if any parties are entitled? Whether the plaintiff being the lawful attorney of Jai Narayan Agarwala The appellant-defendants all on a sudden had withdrawn the Kucha 8. a sale deed on making the statement that they did not want to press the issue of the sale of land by the original Pattadar and accordingly Issue No.5 was render ed redundant by the order of the Court. While deciding the Issue No.2 the trial Court held that for non- 9. compliance of the provisions of Order I Rule 8 of the C.P.C, the suit is not mai ntainable. Even it was decided that the suit is under-valued by the respondent a nd the same is liable to be rejected under Order VII, Rule 11 of the C.P.C. However, while deciding the Issue No.3 it has been held that Jai Naraya n Agarwala, the original Pattadar has got the right, title and interest over the suit land and also observed that a part of the land measuring 1 Bigha was acqui red by the National Highway Authority of India (NHAI) and as such the land remai ned with the original Pattadar after acquisition measured 2 Bigha 1 Katha 11 Lac has of land. It has been decided that only on the remaining land after acquisiti on, the original Pattadar has got the right, title and interest and also declare d the respondent as the authorized agent of the original Pattadar. In view of this decision as rendered in Issue No.2 & 3 the suit was dismissed. Other issues except Issue No.1 were accordingly discarded. 10. Being aggrieved, the respondent carried out an appeal against th e judgment and decree dated 31.07.2010 as passed in Title Suit No.48 of 2006 und er Order XLI Rule 1 read with Section 96 of the C.P.C. in the Court of the Civil Judge, Marigaon on the ground that the impugned judgment was the outcome of mis reading of the evidence and misconstruction of the relevant law. The Civil Judge , Marigaon decided the Issue No.1 in favour of the respondent holding that non-c ompliance of the provisions of Order I Rule 8(1) of the C.P.C. in the circumstan ces of the case cannot render the suit not maintainable. The Civil Judge also he ld that on the basis of the amount of compensation for acquisition the value of the suit land cannot be determined. Accordingly, the Civil Judge, Marigaon decid ed all other issues in favour of the respondent and decreed the suit by the impu gned judgement. 11. By this appeal the judgement and decree of the Civil Judge, Mari gaon has been challenged. The appellant-defendants has proposed the following su bstantial questions of law : (1) Whether the learned lower appellate court committed illegality in reversing the judgment and decree passed by the learned trial court without setting aside the findings recorded by the learned trial court? (2) struing the provision of Order 1, Rule 8 of C.P.C? (3) struing the provision of Order 7, Rule 11(b) of CPC? (4) g the question of adverse possession of the appellant/defendants? Whether the judgment and decree passed by the lower appellate court are (5) vitiated for non consideration of oral evidence adduced by the appellant/defenda nts? (6) Whether the learned lower appellate court committed illegality in not di smissing the suit in absence of rebuttal evidence adduced by the respondent/plai ntiff? (7) ated on account of perverse findings recorded by it? (8) Any other substantial question of law with the permission of the Hon’ble Whether the learned lower appellate court committed illegality in miscon Whether the learned lower appellate court committed illegality in miscon Whether the judgment and decree passed by lower appellate court are viti Whether the lower appellate court committed illegality in not considerin Court.

12. However, Mr. R.P. Sharma, learned senior counsel appearing for t he appellant-defendant led emphasis that the findings as returned by the appella te court on the non-compliance of the Order I Rule 8 of the C.P.C., not dismissi ng the suit in view of Order VII Rule 11(b) of the C.P.C and for not changing th e description of the suit land by way of amendment in view of acquisition by the National Highway Authority of India. Thus the other questions are in effect aba ndoned. It appears that as an abundant caution the trial Court permitted the res pondent for taking steps under Order I Rule 8 for embracing all and sundry inter ested in the said proceeding. It is also admitted fact that the respondent did n ot take steps by the public advertisement. There had been no direction also rega rding such publication by the Court. Therefore, it is clear that the suit was no t in the representative capacity as projected in one stage of the proceeding. Or der I Rule 8 also provides that one or more persons may or may defend such suit on behalf or for the benefit of all persons so interested. This part of the prov ision also includes the appellant who claims to represent the other persons havi ng been interest in the affairs of the appellant. Moreover, in the Written Stat ement the appellant-defendant, nowhere stated that whether the society is regist ered or unregistered one. Even no issue was framed on the said aspect of the mat ter. As such this Court finds no substance the said proposed question of law on compliance of Order 1 Rule 8 of the C.P.C. Mr. R.P. Sharma, learned senior counsel appearing for the appell ant-defendant emphatically submitted that the suit was under valued and as such the appropriate court fees was not paid and in view of that matter, the suit oug ht to have been dismissed under Order VII Rule 11(b) of the C.P.C which provides that under valuation and omission to correct valuation despite being asked by t he court entails rejection of the plaint. Mr. R.P. Sharma, learned senior counse l to buttress his contention referred a decision of the Apex Court in A. KA.CT. V.CT. Meenakshisundaram Chettair vs. A.KA.CT. V.CT. Venkatachalam Chettair as re ported in AIR 1979 SC 989 where the Apex Court held that: (cid:28)This section casts a duty on the Court to reject the plaint when the relief cla imed is undervalued. If on the materials available before it the Court is satisf ied that the value of relief as estimated by the plaintiff in a suit for account s is undervalued the plaint is liable to be rejected. It is therefore necessary that the plaintiff should take care that the valuation is adequate and reasonabl e taking into account the circumstances of the case. In coming to the conclusion that the suit is undervalued the court will have to take into account that in a suit for accounts the plaintiff is not obliged to state the exact amount which would result after the taking of the accounts. If he cannot estimate the exact a mount he can put a tentative valuation upon the suit for account which is adequa te and reasons. The plaintiff cannot arbitrarily and deliberately undervalue the relief. A Full Bench of the Andhra Pradesh High Court in a decision in Chillaku ru Chenchuram Reddy v. Kanupuru Chenchurami Reddy [ILR (1969) Andh Pra 1042], af ter elaborate consideration of the case law on the subject has rightly observed that there must be a genuine effort on the part of the plaintiff to estimate his relief and that the estimate should not be a deliberate under-estimation. (cid:29) Mr. R.P. Sharma, learned senior counsel appearing for the appell 13. ant-defendant contends on referring to the said decision that from the acquisiti on award, it would be seen that the subject matter ought to have been valued muc h higher, not Rs.1,50,000/- as valued by the plaintiff, the respondent herein. H e has further referred to a decision of this Court in Kalaramboro @ Kalia Kachar i vs. Harendra Malakar as reported in 2010(1) GLT 357 where this Court after due consideration held that: (cid:28)In Meenakshisundaram(supra), the Apex Court held that if on the materials avail able before the Court, the Court is satisfied that the value of relief as estima ted by the plaintiff in a suit for accounts is undervalued the plaint is liable to be rejected under Order 7, Rule 11(b). In Tara Devi (suupra), the Apex Court held that in a suit for declaration with c onsequential relief falling under Section 7(iv) (c) of the Act, the plaintiff is free to make his own estimation of the reliefs sought in the plaint and such va luation both for the purposes of the fee and jurisdiction has to be accepted by Court unless it is arbitrary, unreasonable and deliberately underestimated. In t hat case, the Court can examine valuation and can revise the same. In Haripada Datta(supra), this Court held that the question of the applications of Section 7(iv)(c) to suits for declaration and possessions depends upon the ci rcumstances of each case. When a bare declaration is sufficient to afford adequa te relief to the plaintiff and the prayer for possession is superfluous, the cas e would be governed by schedule (ii) Article 7(iii). To such a suit Section 7(iv ) (c) shall have no applications. Similarly where the suit is in substance one f or possession and the prayer for declaration redundant, the suit falls within th e purview of Section 7(v) and is not govern by Clause (iv) (c) of Section 7. In Md. Hafiz(supra), this Court held that although the plaintiff has an absolute right or option or place any valuation whatever on his relief under Section 7(i v) (c), a reading of Section 7-A together with Section 7(iv) (c) shows that the Court has jurisdiction to inquire into whether the amount at which the plaintiff values the relief sought for is reasonable. On consideration of the submissions of Mr. R.P. Sharma, learned 14. senior counsel appearing for the appellant-defendant this Court finds that the o bservation of the first appellate Court is quite sound when it holds that the aw ard as passed under Section 11 of the Land Acquisition Act, 1984 cannot be the b asis of the suit value, for reason that such award is constituted of so many com ponents, not of the value of the land alone. Moreover, in this case a part of th e land where the constructions are standing is the subject matter of the recover y and otherwise it is a suit for a mere declaration. In the Written Statement it is also found that the consideration value of the entire land at one point of t ime was assessed at only Rs.48,000/- whereby the suit value has been shown at Rs .1,50,000/-, much higher than the former one. The said amount cannot be stated t o be unreasonable. Moreover, the implication of the Clause-B, Rule 11 of Order V II contains a very important requirement before rejection of the plaint. For pur pose of appreciation, Order VII Rule 11(b) is reproduced hereunder: (cid:28)Whether the relief claimed is under valued and the plaintiff on being required by the Court to correct the valuation within a time fixed by the Court fails to do that (cid:29) In event of failure to correct the valuation within the prescribed time the plaint can be rejected. In the entire proceeding the court never required the plaintiff-respondent to correct the valuation. As such, no su bstantial question of law is involved in it. 15. The other substantial question of law as raised in regard to the area of the suit lands vis-à-vis its identifying boundaries apparently made out a substantive question. But the first appellate Court had very correctly dealt with the matter. They declined to give any declaration as regards to the right, title and interest over the suit land. The declaration that was granted as regar ds the land excluding the acquired land. Definitely the plaintiff could have obv iated the conundrum by the amendment. Absence of such amendment did smudge the i dentity of the suit land. As such, no question of law, far below the substance q uestion of law, is involved in the proposition. In view of the discussion made above, this appeal does not deser 16. ve to be admitted for further scrutiny. Hence, the appeal stands dismissed on af firming the impugned judgment and decree. Prepare the decree accordingly.