Heard learned counsel for both the parties.
The petitioner filed a suit (O.S.No. 189 of 1982) against the respondent for possession alleging that respondent was tenant of the land in dispute on behalf of petitioner at the rate of Rs.10/- per month and respondent had made construction thereupon. It was specifically stated as well as prayed in the plaint that construction made by the respondent should be directed to be removed. Para 13 and 14 (a) of the plaint are quoted below:-
"13. That the valuation of the suit for the purposes of jurisdiction is Rs. 25,000/- being the value of building material on the plaintiff's land and Rs. 120/- value of land to the extent of plaintiff's share and at Rs. 360/- being the arrears of rent and damages for the past three years, total Rs. 25,120/-.
The plaintiff claims no interest in the building material raised by the defendant which the defendants are at liberty to remove. As the land of the plaintiff has been yielding rent at the rate of Rs.10/- per month, annual net profits come to Rs. 120/-. The Court fee is being paid on to sum of Rs. 120/- u/s 7 (xi)(cc) of the Court Fees Act and on Rs. 360/- being arrears of rent and damages."
14. That the plaintiff, therefore, claims the following reliefs:-
(a) That a decree for ejectment of the defendant from the land in suit detailed at the foot of this plaint and shown by letters ABCD in the map annexed to this plaint with directions to the defendant to remove the constructions and its Malwa from the land in suit within such time as the Court may fix, be passed in favour of the plaintiff and actual Dakhal of vacant land be delivered to the plaintiff after getting the constructions removed. "
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On the application of the defendant, the trial Court got the property in dispute valued by Amin who reported, after inspection, that market value of land was about Rs. 6 lacs and market value of constructions about Rs 4 lacs. The trial Court / I Addl. Civil Judge (Sr.Div.), Aligarh through order dated 27.03.2001 (affirmed on 27.04.2001) directed the plaintiff to pay ad valorem Court fees on the market value as determined by the Amin. Against the order dated 27.04.2001 plaintiff filed Misc. Civil Appeal No. 116 of 2001, which was dismissed by ADJ/Special Judge, Aligarh, on 08.03.2006, hence this writ petition. The A.D.J. held that question of Court Fees had been decided by the trial Court on 27.03.2001 which was not challenged and appeal directed against order dated 27.04.2001, through which trial Court had affirmed its earlier order dated 27.03.2001 was not maintainable. I do not consider it necessary to decide the question of maintainability of appeal before the A.D.J. as through this writ petition orders passed by the trial Court dated 27.03.2001 and 27.04.2001 have also been challenged and are being adjudged.
The trial Court held that Court fees on the market value of land and construction should be paid.
In my opinion the view taken by the trial Court is unsustainable in law. A suit for eviction by landlord against tenant is to be valued on one year rent as per section 7(xi)(cc) of Court Fees Act. As far as the construction made by the defendant is concerned, plaintiff petitioner is not claiming any right over the same. It is rather prayed that the defendant must be
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directed to remove the construction. Accordingly, plaintiff is not required to pay Court Fees on the market value of the construction. Plaintiff would have been required to pay Court Fees on the market value of the construction in case, he had claimed right over the same. Learned counsel for the petitioner has cited a Division Bench authority of this Court in this regard reported in Abdul Ghani Vs. Vishunath 1957 ALJ 105 which supports his contention. In this regard reference may also be made to Dakhilal Kushwaha Vs. A.D.J. 1986 ALJ 582, wherein it has been held that decree for possession is quite distinct and separate from the decree of mandatory injunction for removal of construction and even if decree of mandatory injunction has become time barred still decree for possession can be executed. It has also been held in para 8 of the said authority that even without seeking mandatory inunction for demolition of construction made by the defendant, only relief of possession would have been sufficient. Accordingly in such situation relief of mandatory injunction for removal of construction is almost superflous.
Accordingly, writ petition is allowed. Impugned orders are set aside. It is held that the plaint is properly valued.
As the suit is of 1982, trial Court is directed to decide the suit very expeditiously. Parties are directed to appear before trial court on 29.01.2013.
Order Date :- 20.12.2012 S.A.A.Rizvi