High Court Division :
(Civil Revisional Jurisdiction)
Mahmudul Hoque J
Ismail Mia. (Md).........
..... . Plaintiff- Petitioner
Abeda Khatun and others……Defendant- Opposite-Parties
July 10th, 2018
Code of Civil Procedure (V of 1908)
Order VII, rule 11 (d)
Section 115 (1)
The relief by way of declaration to the effect that the sale deed is void, illegal and not binding upon the plaintiff along with declaration of title are the principal reliefs in the suit and recovery of possession which is incidental and consequential relief. If the relief against sale deed is refused then the other reliefs sought for cannot be granted.
Code of Civil Procedure (V of 1908)
Order VII, rule 11 (d)
The defendant who may believe and even honestly, that proper court fees has not been paid by the plaintiff, still has no right to move the superior court of appeal or in revision against the order adjudging payment of court fees payable on the plaint. o ..... (15)
Ahmed Kabir vs Haji Mazahar Ahmed, 43 DLR 500 and Syed Ahmed vs Keshab Chandra 1988 BLD 60 ref.
Foyej Ahmed, Advocate-For the Plaintiff Petitioner
Sarfur Rashid, Advocate-For the Defendant Opposite-Parties.
On an application under Section 115(1) of the Code of Civil Procedure, this Rule' was issued at the instance of the petitioner calling upon the opposite party No.1 to show cause as to why the judgment and order dated 14-9-2017 passed by the learned District Judge, Habiganj in Miscellaneous Appeal No. 01 of 2017 allowing the appeal and thereby setting aside the order dated 9-1-2017 passed by the learned Assistant Judge, Lakhai, Habiganj in the Suit No. 137 of 2015 returning the plaint should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. Facts relevant for disposal of this Rule, in short, are that the opposite party No.1, Most. Abeda Khatun as plaintiff instituted Title Suit No. 137 of 2015 in the court of Assistant Judge, Lakhai, Habiganj, against the petitioner as defendant for decree of declaration of title in the property and for a declaration that register deed bearing No. 100/2006 is void ab initio illegal and not binding upon the plaintiff along with recovery of possession. The suit has been valued at Taka 1,73,000 being the value of the registered deed under challenge for the purpose of jurisdiction of the court and for payment of court fees. The defendant in suit appeared and contesting the suit by filing written statement. In usual course the trial court framing issues for determination of the dispute and proceeded with hearing of the suit. After fran.ing issues the defendant petitioner filed an application on 22-9-2016 under Order VII, Rule 11 (d) of the Code of Civil Procedure before the trial court praying for rejection of the plaint raising objection as to valuation of the suit and payment of court fees.
3. The trial court has enquired the matter of valuation through sherestadar of the court who submitted report obtaining information from the concern Sub-Registrar office. Thereafter, the trial court heard the application filed by the defendant-petitioner under Order 7 Rule 11 (d) and the valuation matter. After contested hearing the trial court rejected the application filed by the defendant under Order Vll, Rule 11 (d) and accepted the report of the sherestadar and returned the plaint in suit to the plaintiff for presenting the same before the appropriate court by its order dated 9-1-2017 being the pecuniary jurisdiction of the suit is beyond the trial court.
4. Being aggrieved the plaintiff moved against the order before the District Judge, Habiganj by filing Miscellaneous Appeal No. 01 of 2017. The learned District Judge, Habiganj, heard the appeal and on contested hearing allowed the same by setting aside the order of the trial court by the impugned judgment and order dated 14-9-2017. At this stage, the defendant-respondent-petitioner moved this Court by filing this revisional application and obtained the present Rule and order of stay.
5. Mr. Foyej Ahmed learned Advocate appearing for the petitioner at the very outset drawing attention of the court to the prayer made in the plaint submits that the suit is for a declaration of title in the property and recovery of possession. As such the suit has to be valued on the market price of the property in question. But the Plaintiff valued the suit on the value of a sale deed valued at Taka 1,73,000 and paid court fees on the said valuation. He further submits that the market price of the suit property as per report submitted by the sherestadar is Taka 10,89,040 which is beyond the pecuniary jurisdiction of the trial court. The trial court by accepting the said report returned the plaint as it has no jurisdiction to try the suit. He submits that the trial court rightly returned the plaint to the plaintiff for presenting the same before the court having jurisdiction to try the same and to pay appropriate court fees on the said value.
6. It is also argued that the appellate court while allowing the appeal has misconceived the provisions of law regarding' valuation of the suit and payment of court fees and on such an erroneous view wrongly found that the value of the suit would be the value of the sale deed under challenge and not the market price of the property and as such, the judgment and order passed by the appellate court is liable to be set aside.
7. Mr. Saifur Rashid, learned Advocate appearing for the opposite party No.1 submits that the cause of action of the suit in fact arises out of a registered kabala under challenge on the basis of which the defendant No.1 claims title in the property and dispossessed the plaintiff from the suit land. The dispute in the instant case is based on a document and both the declarations are closely related to each other and the title of the plaintiff could be declared by the court only if the court finds that the kabala under challenge is not at all binding upon the plaintiff.
8. He further submits that the substantive relief sought for in the instant suit is a declaration in respect of a sale deed in the name of the defendant and as such, the value of the suit would be the value of the deed not the market price of the suit property. He also argued that the plaintiff rightly valued the suit on the basis of the value of the sale deed in question as the substantive relief of the plaintiff against the defendant was in respect of the sale deed. In support of his such contentions he has referred to the case of Ahmed Kabir vs Haji Mazahar Ahmed reported in 43 DLR 500 and Syed Ahmed vs Keshab Chandra reported in 1988 BLD 60.
9. Heard the learned Advocate for the parties, perused the revisional application, impugned judgment and order of the courts below, plaint in suit and written statement filed by the defendant as annexed to the application.
10. Going through the prayers made in the plaintiff in suit, it appears that the suit is for declaration and recovery of possession. To appreciate the facts involved in this case, prayers as made in the plaint may be reproduced below for easy understanding, which run thus:
“১২ । অতএব বাদীপক্ষ প্রার্থনা করেন যে,
(ক) বিরোধীয় নিম্ন তপশীল বর্ণিত ভূমিতে বাদী পক্ষের জোতস্বত্ব সাব্য¯ে' তাহা ফবপষধৎবফ হওয়ার;
(খ) বিরোধীয় নিম্ন তপশীল বর্ণিত ভূমিতে ১/২নং বিবাদীকে অন্যায় অনধিকারী জবরদখলকার গণ্যে তাহাদিগকে তথা হইতে অপসারণ করতঃ তথায় ১/২নং বিবাদীর নির্মিত পাকা কি কাঁচা গ"হাদিসহ যাবতীয় প্রতিবন্ধকতাদি অপসারণে বিরোধীয় ভূমির
নির্দায় বাদীনির খাস দখল পাওয়ার ;
(গ) ১/২নং বিবাদীপক্ষ মাননীয় আদালতের নির্দেশে বিরোধীয় ভূমির যাবতীয় প্রতিবন্ধকতাদি অপসারণে উহার নির্দায় খাস দখল বাদীপক্ষের অনুকূলে পরিত্যাগ না করিলে মাননীয় আদালত মাধ্যমে বিরোধীয় ভূমির খাস দখল পাওয়ার;
(ঘ) বিগত ও হাজতীকালের মহাশীলাতের প্রাথমিক ডিক্রি হওয়ার;
(ঙ) বিরোধীয় ভূমি প্রসঙ্গে ৩নং বিবাদী কর্ত"ক ১/২নং বিবাদী বরাবরে সম্পাদিত ও রেজিস্ট্রীকৃত লাখাই এস.আর. অফিসের ১০০/২০০৬ইং নং যুক্ত রেজিঃ দলিলটি শুরু হইতে বাতিলযোগ্য এবং বেআইনীগণ্যে বিরোধীয় ভূমি প্রসঙ্গে উক্ত দলিলটি বাদীপক্ষের বিরুদ্ধে কার্যকরি নহে মর্মে ফবপষধৎবফ হওয়ার;
(চ) বিরোধীয় ভূমি প্রসঙ্গে সহকারী কমিশনার (ভূমি), লাখাই কার্যালয়ের ৪৯৩/২০১৩-২০১৪ইং সনের নামজারী মামলা মূলে ১/২নং বিবাদীর হাসিলা, নামজারী সংক্রান্ত আদেশ ও তদানুবলে প্রাপ্ত নামজারী পরচা বেআইনী ও যোগাযোগী গণ্যে উক্ত নামজারী পরচা বিরোধীয় ভূমি প্রসংঙ্গে বাদীপক্ষের বিরুদ্ধে কার্যকরি নহে মর্মে ফবপষধৎবফ হওয়ার;
11. It appears that the 1st prayer is a declaration of title in the property, 2nd prayer is recovery of possession, 4th prayer is a declaration in respect of a sale deed by which the defendant No. 1 claims title in the suit property. From the prayers it seems that the title of the plaintiff in suit could only be declared unless a declaration is given to the effect that the sale deed in question is void, illegal and not binding upon the plaintiff.
12. In the present case substantive prayer of the plaintiff is declaration of title and a declaration to the effect that the sale deed to be illegal and void and both the prayers have nexus with each other. In this situation this Court in the case of Ahmed Kabir vs Haji Mazahar Ahmed reported in 43 DLR 500 held that;
"the objective standered of valuation is the consideration money of the kabala or market price prevailing at the time of institution of the suit which is less".
And in the case of Syed Ahmed Vs Keshab Chandra reported in 1988 BLD 60 it has been held that;
"In a suit where the relief is sought for is that certain kabala's are not binding upon the plaintiff and for recovery of possession, where the market price of the property is either more than or equal to the consideration money then consideration money will be the objective slandered for valuing the relief sought for but if the market price less, then market price would be the objective standard for valuing the relief sought."
13. The plaintiffs, no doubt, have challenged the legality of the defendant's title in the property on the basis of the sale deed under challenge. This, in fact, for tracing the title of the real title holder, declaration of the plaintiff's title was sought for, in the suit. If the said declaration is not granted then the other reliefs such as declaration of title in the property or recovery of possession cannot be granted independently in favour of the plaintiff. As such, this court has no hesitation to hold that the relief by way of declaration to the effect that the sale deed is void, illegal and not binding upon the plaintiff along with declaration of title are the principal reliefs in the suit and recovery of possession which is incidental and consequential relief. If the relief against sale deed is refused then the other reliefs sought for cannot be granted.
14. In view of such situation the plaintiff is required to value the suit on the value of the sale deed not on the market price of the property in question. Relying on the decisions referred to on behalf of the opposite party this court finds that the trial court wrongly returned the plaint and the appellate court rightly held that the suit has been properly valued for the purpose of jurisdiction and payment of court fees and the Assistant Judge has jurisdiction to try the said suit. The trial court accepted the valuation of the suit at the time of filing of the same and the defendant did not raise any objection at the earliest but admitting jurisdiction filed written statement and the court framed issues for determination of the dispute. Moreover, the defendant did not file any application praying for return of the plaint but prayed for rejection of the plaint under Order VII, Rule 11 (d) of the Code of Civil Procedure which was rejected by the trial court.
15. Valuation of a suit and payment of court fees is primarily a question between the plaintiff and the government because it involved government duties only. The defendant who may believe and even honestly, that proper court fees has not been paid by the plaintiff, still has no right to move the superior court of appeal or in revision against the order adjudging payment of court fees payable on the plaint. The impugned judgment and order passed by the appellate court speaks with clarity and there is no infirmity of reasoning whatsoever or any error of law, which would warrant interference of this court in exercise of jurisdiction under Section 115 of the Code of Civil Procedure.
16. In the light of the legal position as stated above this court finds that the principal relief claimed by the plaintiff opposite party in title suit is of declaration that a sale deed is void, ab initio, illegal and not binding upon the plaintiff along with other relief of declaration of title and recovery of possession are incidental and consequential to the principal relief. In such view of the matter the plaintiff is entitled to value the suit on the basis of the principal relief claimed by him and the .other relief is merely incidental to the said relief.
17. In the backdrop of the above discussion this court finds that the learned appellate court rightly came to the correct finding that the plaintiff is at liberty to value the suit in accordance with the declaration of relief of his choice. Thus, the impugned judgment and order does not call for any interference.
18. Taking into consideration the above, this court finds no merit in the Rule as well as in the submissions of the learned Advocate for the petitioner.
19. In the result, the Rule is discharged, however, without any order as to costs.
20. Order of stay granted at the time issuance of the Rule stands vacated
Communicate a copy of the judgment to the court concerned.