ORDER :

Petitioners/defendant Nos.1, 2, 4, and 8 to 10 have filed this present petition being aggrieved by the order dated 04.05.2022 whereby the learned Civil Judge, Senior Division has rejected the application filed under Order VII Rule 11 of CPC.

The facts of the case in short are as under :

2. Respondent No.1 being a plaintiff has filed a civil suit for declaration, permanent injunction, partition, possession, and cost of the suit, etc. against petitioners and respondent Nos.2 to 5. By way of the aforesaid suit, the plaintiff is seeking the partition of agricultural land of various Survey numbers and areas mentioned in paragraph No.3 of the plaint. In paragraph No.12 of the plaint, the plaintiff valued the suit Rs.10,000/- for the relief of declaration, Rs.10,000/- for the relief of permanent injunction and Rs.2,160/- (Lagaan Rs.108 X 20) for partition and possession, in total valued the suit Rs.22,160/- and paid the court fees of Rs.840/-.

3. The petitioners appeared before the Civil Court and filed an application under Order VII Rule 11 of CPC seeking rejection of the plaint on the grounds of non-payment of improper valuation as well as non-payment of ad-valorem court fees on the basis of the market value of the suit land. The application was opposed by the plaintiff and vide order dated 04.05.2022, the learned Civil Judge, Senior Division dismissed the application. Hence, this present petition before this Court.

4. Shri Rishi Tiwari, learned counsel for the petitioners submits that the Learned Court has failed to appreciate the provisions of subsections (vi-a) of Section 7 of the Court Fees Act, 1870. Since the plaintiff is out of possession of the property of which he claims to be a coparcener or co-owner and such claim is denied, therefore, the value of such share is liable to be ascertained on the basis of the market value of the property not on the basis of the land revenue. In support of his contention, Shri Tiwari learned counsel has placed reliance on a judgment passed by the Co-ordinate Bench of this Court in the case of Umar Farukh V/s Nabi Baksh and others in Misc. Petition No.734 of 2023 decided on 16.03.2023 in which it has been held that when the relief of partition is also sought this Court has no hesitation to hold that section 7 (vi-a) would be applicable in the facts and circumstances of the case and merely because the land is agricultural land, it would not fall under section 7(v) as has been wrongly held by the learned judge of the trial Court.

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6. Shri Rishiraj Trivedi, learned counsel for respondent No.1/plaintiff submits that this Court in case of Bhagwati V/s Chamar Rai in Civil Revision No.1236 of 1979 decided on 13.02.1980 [1980 (II) M.P.W.N. 22] had held that the legislative intention is thus clear that when a plaintiff claims partition and separate possession on the ground that he is out of possession, the claim is to be valued just like a suit for possession simpliciter. A harmonious construction of paragraphs, (v) and (vi) of section 7 will show that the legislature intended that the market value of a land revenue paying land for both the clauses will be the same, that is, twenty times the land revenue as provided under clause (v). A different interpretation will create a conflict between these two clauses. He has also placed reliance on a judgment passed by another Co-ordinate Bench in the case of Basant Kumar V/s Ved Prakash reported in 2014 SCC OnLine MP 2209 in which also the property in question was an agricultural land which is an ancestral property of the family and the petitioner was claiming the possession of the land based on this right of the property. Relying on a law laid down in the case of Bhagwati (supra) this Court has held that the claim is to be valued just like a suit for possession simpliciter i.e. 20 times the land revenue.

7. Shri Trivedi learned counsel has also placed reliance on a judgment passed in the case of Gorelal Lodhi and others V/s Ratanlal Lodhi and others in