The court fee should be determined based on the relief sought in the plaint and not on the basis of the plaintiff's statement after the institution of the suit.

JUDGMENT :

1. The present appeal is preferred against the judgement and order dated 06.07.2009, passed by the learned Civil Judge (S/D)/1st FTC, Haridwar, in Original Suit No. 75 of 2006, Gurucharan Vs. Manoj, whereby the learned Civil Judge (S/D)/1st FTC, Haridwar, directed the appellant to pay Court Fees as per Section 7(a) of the Court Fees Act, 1870, for seeking relief of taking possession over the property in dispute.

2. Heard learned counsel for the parties and perused the record.

3. The brief facts, giving rise to the present Appeal are that the plaintiff/appellant instituted a Original Suit No. 75 of 2006, before the learned Civil Judge (S/D)/1st FTC, Haridwar, wherein a relief was sought in the nature of mandatory injunction against the defendant nos. 1 to 3, who are the respondents herein, for restraining them from interfering in his possession and remove the unauthorized constructions from the property in question and handover the possession to the plaintiff.

4. I have perused the Original Suit No. 75 of 2006, wherein the following reliefs were sought, the extract of which is being reproduced as under:

5. It is pleaded in the plaint that earlier the owner of the property in question was one Charandas S/o Parmanand, whose name was entered into the revenue records and thereafter, in place of Charandas, the name of his son Ramakant was entered, and Ramakant gave a power of attorney to one Shri Sukhdev Singh S/o Charan Singh, R/o Vikas Colony BHEL, Ranipur, District Haridwar, and on this Power of Attorney the rights were given to Sukhdev Singh on the property, the observation of which, is enclosed in the plaint disclosed in the Map (Naksha Nazari) marked as ‘A’, ‘B’, ‘C” and ‘D’. It is further pleaded in the plaint that Sukhdev Singh, the Power of Attorney holder executed a lease-deed in favour of the plaintiff and one Surendra Singh and since 06.04.2002, the plaintiffs are in possession. It is further pleaded in the plaint that the defendant nos. 1 to 3 have no concern with the property in question and neither they are owner nor are in possession. It is further pleaded in the plaint that a boundary wall was constructed over the property, which was leased out on 06.04.2002, however, the defendants are intended to take the possession over the property in question. It is further pleaded in para 8 of the plaint that on 14.02.2006, the defendant no. 1 to 3 came with common intention to take possession but could not succeed to get possession, however, they threatened to take possession over the property in question anyhow.

6. After institution of the aforesaid suit, an application was moved under Order 6 Rule 17 Read with Section 151 of the Code of Civil Procedure, 1908, by the plaintiff in the aforesaid Suit for seeking the amendment to the plaint with this statement of fact that the possession has been taken over by the defendants during pendency of the suit. The Application moved under Order 6 Rule 17 read with Section 151 CPC, was numbered as 105Ka-1, was allowed by the learned Civil Judge (S/D)/1st FTC, Haridwar, by order dated 29.04.2009 holding that the amendment sought to be incorporated by the plaintiff, however the burden of same lies upon the plaintiff, which is the subject matter of evidence. The certified copy of the order dated 29.04.2009 is placed on record by the respondents by way of a supplementary affidavit. The order dated 29.04.2009 attained finality therefore, the burden of proof lies upon the plaintiff to establish that the possession was taken over by the defendants during the pendency of the suit.

7. The order passed by learned Civil Judge (S/D)/ 1st FTC, Haridwar, dated 29.04.2009, on an application of the plaintiff under Order 4 Rule 17 red with Section 151 CPC, is being reproduced herein below:

8. After allowing the application under Order 6 Rule 17 read with Section 151 CPC, the order passed on Amendment Application were carried out in the plaint and the relief “Ba”, which was incorporated after the amen