Arjundas (Dead) through L. R. Lekhraj Rawal vs Kapil Udyog Through Satya Prakash Mehrotra (Dead) through LRs. Smt. Savitri Mehra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2017 Supreme(MP) 862

IN THE HIGH COURT OF MADHYA PRADESH
Rajendra Mahajan, J.
Arjundas (Dead) through L.R. Lekhraj Rawal v. Kapil Udyog Through Satya Prakash Mehrotra (Dead) through LRs. Smt. Savitri Mehra and others.
First Appeal No. 189 of 2003 (Gwalior); against judgment and decree dated 20.3.2003 passed by Third Additional District Judge, Gwalior in Civil Suit No. 137A of 1994; Decided on 8.12.2017.

Advocates:
V.K. Bhardwaj, Senior Advocate with Rohit Batham for appellant;
Anmol Khedkar for respondent No.1

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       (1) Specific Relief Act, 1963 -- Ss.57 and 34 -- land taken on license fee of Rs.1,500/- per month by notarized agreement -- suit for recovery of possession and recovery of arrears of license fee -- averments of plaint denied by defendant -- it is also averred by him that land is Government land and he had not taken land on license from plaintiff -- plaintiff proved his case by documentory and oral evidence as well as cross-examination of defendant -- trial Court also given a finding that defendant has taken land from plaintiff on license -- trial Court erred in dismissing the suit on ground that land is of ownership of Government -- until State Government takes possession from plaintiff by due process of law -- plaintiffs are entitled to get license fee from 1.9.1988 till 31.1.2011 -- appeal partly allowed. [Paras 2, 3, 12 to 14 & 17
       (2) Court-fees Act, 1870-- S.7(iv) -- suit for recovery of possession and recovery of arrears of license fee from licensee -- question of payment of court-fee -- court fee will be paid according to provisions of section 7(iv) and not on market value -- finding of trial Court regarding payment of court-fee on market value set aside. 2007(4) MPHT 131 and 2010(3) MPHT 83(DB) relied on. [Paras 15 & 16

JUDGMENT

1. The plaintiff No.1 appellant has filed this first appeal under section 96 rw Order 41 rule 1 of the Code of Civil Procedure against the judgment and decree dated 20.3.2003 passed by the Third Additional District Judge Gwalior in Civil Suit No. 137A of 1994, whereby, the civil suit for recovery of possession and arrears of license fee has been dismissed with costs.

2. The case of the plaintiff's before the trial Court, in short, is that they are owner of a parcel of land measuring 30 ft.X166.5 ft. total area 4995 sq.ft (for short `the suit land') located in Kishan Bagh Bahodapur Gwalior. The suit land adjoins with other agricultural lands of their ownership, the details of which are given in para 1 of the plaint. The map of suit land with the directions is also attached with the plaint. On 6.7.1988, they had given the suit land to defendant Satya Prakash on license on the license fee of Rs.1,500/- (Fifteen hundreds) per month for the use of his industry known as Kapil Udyog for a period of 11 months with other terms and conditions. On that day, he had given them Rs.5,000/- (five thousand) in advance towards license fee. In this respect, an agreement is executed between plaintiff Arjun Das and defendant Satya Prakash. The agreement has been duly notarized. In the agreement, all the terms and conditions are mentioned in details. Defendant Satya Prakash had not paid them the license fee as per the agreement. Thereupon, they gave him a legal notice on 20.4.1989 by the registered post directing him to hand over them the vacant possession of the suit land and to pay the outstanding license fee. In reply to the notice he gave false reasons. Hence, they have filed this suit seeking recovery of possession of the suit land, license fee from 1.9.1988 till the institution of the suit amounting to Rs.20,000/- (twenty thousand) and other consequential reliefs mentioned in para 11 of the plaint.

3. Defendant respondent Satya Prakash submitted the written statement in his life time denying the plaint averments. He has averred therein that the owner of the suit land is the Government of Madhya Pradesh. The plaintiffs got the sale deed of the suit land along with other agricultural land executed by one Laxman s/o Mula. He had no right to sell the suit land to the plaintiff as it is government land. He had never taken the suit land on license from the plaintiffs. On the other hand, he had occupied on his own the suit land long back and made it usable for setting up his industry. He has submitted an application to the State Government for grant of lease of the suit land. His application is pending. He has also taken legal objections that the plaintiffs have to make valuation of the suit land on its market value upon which they have to pay the court-fee. But, they have valued the suit on the basis of its land revenue and upon which they had paid the court-fee and the suit is barred by law of limitation.

4. On the basis of the contesting averments of the parties, the learned trial Judge framed the issues. Before the trial Court, the plaintiffs examined plaintiff Arjun Das (PW2) and notary Harnarayan Sharma (PW1) and exhibited the documents Ex.P-1 to P-6. Defendant Satya Prakash examined himself and exhibited the documents Ex.D-1 and D-2. The learned trial Judge, having analyzed and appreciated the oral and documentary evidence of the parties on record, has passed the impugned judgment and decree dismissing the suit mainly on the ground that the suit land is Government land, therefore, the plaintiffs have no right to give the suit land to the defendant on license. The learned trial Judge has also held in para 25 of the impugned judgment that the plaintiffs ought to have valued the suit upon Rs.50,000/- (fifty thousand) over which they ought to have paid the court-fee. It is apposite to mention that the learned trial Judge has directed the plaintiffs to pay the deficit court-fee within 15 days from the date of judgment, thereafter, the decr