- (1.) SUDHIR Narain, J. This writ petition is directed against the order dated 13th Match 1995, passed by Vth Additional District Judge, Ballia, in Civil Appeal No. 167 of 1992 deciding the question of valuation.
(2.) THE facts in brief are that the respondents first set, filed Suit No. 57 of 1979 against the petitioner and others for declaration that the decree passed in Suit No. 19 of 1970 between Razzak Main v. Ziaul Haq passed on 27-3-1973, was not binding upon the plaintiffs and further injunction restrain-in the defendant 1 (petitioner) from interfering in their possession and for mandamus commanding him not to make construction or change the nature of the property in dispute. The averments in the plaint were that the property belonged to Smt Idan Bibi, mother of the plaintiffs and defendants second and 3rd sets. After her death, they inherited her rights and title in the property in question Razzak Mian, petitioner, filed suit against the defendants first set for recovery of money and obtained decree against them. In execution of the said decree, the disputed property was auctioned to the extent of l/6th share. After tha property was purchased and auctioned, the petitioner filed Suit No. 19 of 1970 in the Court of Civil Judge, Ballia, for partition which was decreed on 27th March, 1973 and final decree was passed on 16-12-1978. The plaintiffs were not parties in those suits and it was not binding on them. The defendant No. 1 (petitioner) will have only 2/6th share even if the auction is accepted and not l/6th share. One of the ground for challenging the decree was that the plaintiffs were not parties in the said suit and the property being dwelling house, it could not have been partitioned as against the auction purchaser who was a third party. The trial court dismissed the suit on 17-10-1992. The plaintiff-respondents first set preferred Civil Appeal No. 167 of 1992. During the pen dency of the appeal the appellants moved an application for amendment of the plaint. They claimed alternative relief of possession in case they were not found in possession by the Court. They also sought necessary amendment in respect of valuation clause in the plaint. The respondent No. 1 allowed the amendment application on 24-12-1994 and thus an additional issue was framed on the point of valuation of the suit and payment of additional court fee. The petitioner filed additional written statement and it was asserted by him that after amendment, the plaintiff-respondent should pay ad valorem court-fee. The Court rejected the objection of the petitioner holding that relief of posses sion claimed by the plaintiff was a consequential relief based on the relief of the declaration claimed by the plaintiff's. The petitioner has filed this writ petition against the aforesaid order.
(3.) THE question involved is as to whether on the facts and circum stances of the present case the relief of the possession claimed by the plaintiff-respondents in alternative can be taken as a consequential relief claimed by them based on the relief of declaration sought by them. It depends upon the averments made in the plaint. THE Court has to find out the substantive relief claimed by the plaintiff, In every suit the right of the parties has to be determin ed and the court can grant relief in the suit only when it finds that the plain tiff has established his right to get the relief sought by him. THE plaintiff by merely claiming the relief of declaration and further asking another relief can be in all the circumstances, allege that he is claiming the other relief viz. injunction, possession etc. as consequential reliefs. THE Court has to examine pith and substance of the plaint and find out the real relief claimed by the plaintiff. Section 7 (iv) (c) of the Court Fee Act or Section 4 (iv) (a) of the Amendment Act, provides for declaratory relief and another relief, either as one composite relief or as two distinct reliefs. Such other relief may be termed as "consequential relief". Various provisions of the Court Fees Act provide for ascertainment of the court fee regarding different nature of the relief which may be claimed by the plaintiff id his suit. When a relief claimed in a suit is a consequential relief or an independent relief, has been subject-matter of considerations by various Full Bench decisions of this Court. A seven Judge Full Bench of this Court in the case of Chief Inspector of Stamps U. P. Allahabad v. Mahant Laxmi Narain, AIR 1970 All 488, has laid down following tests: "for purposes of court-fee, the court must look at the reliefs prayed for in the plaint. In order to ascertain the real nature of the reliefs claimed, the substance of the plaint has to be considered. If a declaratory relief alone has been prayed for, the court cannot superad a consequential relief which it thinks the plaintiff ought to have prayed for and treat it as a consequential relief. (See Bishan Samp v. Musa Lal, AIR 3935 All 817 (FB ). Likewise, if only a substantive relief is prayed for it is not open to a court to add or read a declaractory relief also into it and treat it as a declaratory relief with a consequential relief. (See The Vishnu Pratap Sugar Works (P.) Ltd. v. Inspector of Stamps U. P. , AIR 1968 SC 102 ). Court fee has to be determined on the relief as prayed for in the suit. At the initial stage determining court-fee on a plaint, the question whether declaratory suit is liable to be dismissed either because it does not fall within the purview of Section 42 of the Specific Relief Act, 1877 (now Section 34 of the 1963 Act) or because the plaintiff has failed to sue for a further relief which wag open to him or for some other reason does not arise ; nor dues the question arise whether the suit can succeed because only a substantive relief has been prayed for. The ques tion of the applicability of Section 7 (iv) (c) of the original Act or of Section 7 (iv) (a) of the amended Act arises only when a declara tory relief and another relief have been asked for either as one composite relief or as two distinct reliefs. " "7. It is to be examined in the present case as to whether the relief of possession claimed by the plaintiffs in the alternative is a consequential relief flowing from the declaratory relief claimed by them. As narrated above, the plaintiffs stated that in pursuance of the decree obtained against some of the co- sharers, the property was auctioned and thereafter the petitioner who was auction-purchaser filed suit for partition in which the plaintiffs were not impleaded and obtained decree. The real dispute was as to whether co-sharer whose shares he purchased in auction had 2/15th share or 1/6th share in the disputed property. 8. Admittedly, the plaintiffs were not parties in the suit filed by the petitioner. In case it is held that the petitioner had only 2/15th share, the decree which was obtained by him against other co-sharers will be invalid against the plaintiffs. The declaratory relief claimed by the plaintiffs will be substantive relief and the relief of injunction and possession will be consequen tial reliefs. In the case of Chief Inspector of Stamps v. Laxmi Narain (supra), the Court after referring to the decision in the case of Kalu Ram v Babu Lal, AIR 1932 All 485, quoted the following passage which is as under : "a relief is consequential if it follows something on which it depends. What ensues or follows must have a necessary connection with cause. 'cause' and 'consequence' are correlative terms, one implying the other. What the courts have to see under Sec tion 7 (iv) (c) is whether the relief of possession where a declaratory decree is prayed for follows as a natural sequence from the decla ration. In a case like the present, the moment a declaration is granted avoiding or nullifying an order granting succession certificate, the result which must follow in the course of natural event is that the possession which has been ordered by that court to be given to the applicant by the curator must be resorted to the party from which it had been originally taken by the curator. ". The passage quoted in the case that relief of possession was claimed in pur suance of the declaration based on succession certificate and it was held that relief of possession claimed was a consequential relief. 9. In the case of Mrs. Lynattee Carolone Maria Mamford v, Mr. Granville Jacobs, AIR 1972 All 129 (V 59 C 29) where the plaintiff prayed for declaration that he is entitled to certain extent as his share in the property and for permanent injunction restraining the defendant from receiving profits, interests etc. or from negotiating the property without his consent. It was held that the relief of injunction was consequential relief as it directly flows from the relief of declaration. 10. In the case of Haripada Datta v. Madhusudan Datta, AIR 1985 Gauhati 93, wherein the plaintiff filed a suit on the allegation that after the death of his father he inherited his right but his uncle was alienating his pro perty and was not giving his share. He filed suit for declaration claiming his share in the property in dispute and further claimed the relief of injunction restraining the defendants from alienating the property and other relief for recovery of his possession to the extent of his share. It was held that the relief of injunction and possession was a consequential relief flowing from the relief of declaration. 11. In the present case, the allegation of the plaintiffs that the peti tioner had not impleaded the plaintiff-respondents as parties in the suit for partition filed against certain co-sharers and such decree was not binding upon the plaintiff. The plaintiffs were claiming that the co-sharers whose rights were sold in auction had only 2/15th share. In these circumstances, the real controversy involved is as to the extent of shares of the petitioner and the plaintiffs in the disputed property. The relief of declaration claimed by the plaintiffs was substantive relief and relief for recovery of possession is only a consequential relief directly flowing from the relief of declaration claimed by them. 12. The Court, however, has not decided the question of valuation on the principle laid down in the case of Chief Inspector of Stamps v. Laxmi Narain (supra ). Even if the relief claimed is consequential rehet the court has to further determine the valuation of the suit under sub-section (iv) (a) of Section 7 of the Court Fees Act with reference to the valuation of property involved. This has to be determined keeping in view the following three things as laid down in Laxmi Narain case (supra): (i) that the plaintiff shall value the relief according to the value of the consequential relief. This means that the declaratory relief, and the consequential relief have to be treated as one relief and the value of such relief has to be the value of the consequential relief ; (ii) that, if the consequential relief is capable of valuation, then the plaintiff shall value the relief at an amount according to this valuation ; and (iii) that, if the consequential relief is incapable of valuation, then the plaintiff shall value the relief at an amount which is the value of the immovable property computed in accordance with sub section (v) (v-A) or (v-B) as the case may be". 13. The court has not considered this aspect of the matter and held "that no court fee has to be paid. Respondent No. 22 or where the case is transferred is directed to decide the question of the court fee and valuation as indicated above. 14. In view of what discussed above, this writ petition is partly allowed. The order passed by respondent No. 22 (Vth Addl. District Judge, Ballia) dated 13-3-1995 (impugned in this writ petition) is hereby modified to the extent referred to above in the judgment and the court below is directed to decide the valuation afresh keeping in view the observations made above. Parties shall bear their own cost. Petition partly allowed. .;