In partition suits, if joint possession is claimed, fixed court fees are applicable unless a clear case of ouster is established, which necessitates ad valorem fees.

JUDGMENT :

ANIL KSHETARPAL, J.

1. The Appellant has preferred the present Appeal assailing the correctness of the order dated 28.08.2024 (hereinafter referred to as the “Impugned Order”) passed by the learned Single Judge of this Court in CS(OS) 52/2022, titled as Anupriya Vij and Anr. vs. Anurag Sant. By the Impugned Order, the learned Single Judge dismissed I.A. No. 11295/2022 in CS(OS) 52/2022, filed by the Appellant/Defendant therein under Order VII Rule 11(b) of the Code of Civil Procedure, 1908, [Hereinafter referred to as ‘CPC‟.], seeking rejection of the plaint on the ground of non-payment of appropriate ad valorem Court Fees based on the correct valuation of the concerned suit property. The Respondents/Plaintiffs therein have instituted the aforesaid Civil Suit, which is currently pending before the learned Single Judge.

FACTUAL MATRIX:

2. The relevant facts, necessary for adjudication of the present Appeal, are briefly stated as under:

i. The parties in the present matter are the children and Class-I legal heirs of Late Shri Shiv Chand Sant (deceased on 17.12.2020) and Late Smt. Vijaya Sant (deceased on 09.08.2020), both being the common ancestors from whom the rights in the concerned suit properties devolve. The Respondents [Plaintiffs before the learned Single Judge] are the real sisters of the Appellant [Defendant before the learned Single Judge].

ii. The dispute arises in respect of two immovable properties [hereinafter collectively referred to as the “suit properties”]:

a) Property bearing No. B-215, Ashok Vihar, Phase-I, Delhi– 110052, constructed on a plot admeasuring 300 sq. yards(250.80 sq. meters) [hereinafter referred to as “Ashok Vihar Property”]; and

b) Property bearing No. 5-B, Nath Market, Nai Sarak, Delhi– 110006, admeasuring 600 sq. feet [hereinafter referred to as the“Nai Sarak Property”].

iii. The present lis originated with the institution of the Civil Suit by the Respondents/Plaintiffs, wherein they sought partition of the suit properties, partition of the immovable assets of the father’s businesses, namely Umesh Prakashan and Umesh Publications, mesne profits, rendition of accounts, and permanent injunction along with a declaration in respect of the suit properties.

iv. The factual controversy centers on the allegation that the Appellant/Defendant, along with his family, is in exclusive use and occupation of the Ashok Vihar Property to the exclusion of the Respondents. The Respondent/Plaintiffs assert that, as Class-I legal heirs, they and the Appellant/Defendant are each entitled to an undivided 1/3^rd share in the suit properties and the immovable business assets.

v. The Appellant/Defendant disputes this claim by placing reliance upon two registered Wills dated 26.08.2015 (executed by the late father) and 24.09.2019 (executed by the late mother) which, according to him, confer upon the Plaintiffs a combined 34% share only in the Ashok Vihar Property. The validity of the aforesaid Wills is directly in issue in the pending Civil Suit, the Respondents/Plaintiffs alleging that they were procured by the Appellant/Defendant through undue influence and coercion.

3. In the course of proceedings, the Appellant/Defendant raised a preliminary objection under Order VII Rule 11(b) of the CPC, contending that the Civil Suit was liable to be rejected for non- payment of ad valorem Court Fees by the Respondents/Plaintiffs on their own valuation of the Ashok Vihar Property. It was urged that, having valued the relief for possession, the Respondents/Plaintiffs were required to pay Court fees in accordance with Section 7(iv)(b) of the COURT FEES ACT , 1870, [Hereinafter referred to as 'Act'.]

4. Consequently, I.A. No. 11295/2022 was dismissed by the learned Single Judge vide Impugned Order, who, after considering the contentions, held as under:

“This Court on the reading of the plaint concluded that the plaintiffs have not admitted their ouster or exclusion from the suit property. Therefore, in the judgments of Anil Kumar Bans