1 2025:CGHC:45158-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 158 of 2023 Judgement reserved on: 11.07.2025 Judgement delivered on: 04.09.2025 1. Afroz Khan, S/o Sattar Khan @ Khwaja Aftab Ahmed, Aged About 44 Years, R/o Mahaveer Colony, Durg, Tahsil And District- Durg, C.G. 2. Bilquis Baig, S/o Habib Nizami, Aged About 52 Years, R/o Mahaveer Colony, Durg, Tahsil And District- Durg, C.G. ...Appellants/Defendants versus • Abdul Razzak Khan, S/o Late Raheem Khan, Aged About 69 Years, R/o Saket Colony, Ward No. 59, Katulbord, Durg, District : Durg, Chhattisgarh ...Respondent/Plaintiff For Appellants : Mr. Goutam Khetrapal, Advocate. For Respondent : Mr. Anand Shukla, Advocate. Hon'ble Smt Justice Rajani Dubey, J. Hon’ble Shri Justice Amitendra Kishore Prasad, J. C A V Judgment Per, Rajani Dubey , Judge 1. The defendants have filed the instant appeal against the judgment and decree dated 11.08.2023 passed by learned Sixth Additional District Judge, Durg, District- Durg Chhattisgarh in Civil Suit No. 59-A/2018 whereby the suit filed by the plaintiff to seek a decree of eviction and permanent injunction has been allowed. The parties to this appeal shall be referred herein as per their description before the trial Court. 2. Brief facts of the case as mentioned in the appeal are that on 03.06.1980, the plaintiff purchased a piece of land bearing Khasra No. 524/1, measuring area 1500 Digitally signed by AMIT PATEL 2 sq.ft. with patwari halka number (PHN) 77/1 and revenue number (RNM) 64, situated in village Kasaridih, Tahsil & District Durg, Chhattisgarh, from Vijay Singh through a registered sale deed. On this land, there is a two storey house (referred to as the suit property). The other siblings of the plaintiff are living on their own, but the defendants have no place to reside. Therefore, the plaintiff allowed them to reside in his house. Later on, the defendants built their own house but did not vacate the suit property, as a result, the plaintiff filed eviction suit against the defendants to obtain a decree for eviction. Upon serving notice, the defendants have filed their joint written statements, whereby denied the plaint averments and submitted that the suit property was purchased in the name of the plaintiff by his late father- Rahim Khan. The house situated on the suit property was built through the joint income of the plaintiff and defendants along with late Rahim Khan. The plaintiff has not solely built the suit property. Therefore, the instant suit lacks merit and should be dismissed. 3. On the basis of pleadings of the parties, the learned trial Court has framed as many as 5 issues for adjudication of suit and directed the parties to lead their respective evidence. 4. After hearing both the parties, vide impugned judgment and decree dated 11.08.2023, the learned trial Court has directed the suit in favour of plaintiff, whereby directed the defendants to vacate the suit property. Hence, this appeal has been filed by the appellants. 5. Learned counsel for the defendants submits that the the impugned judgment and decree dated 11.08.2023 is perverse, contrary to law, facts and circumstances of the case, therefore liable to be set-aside/quashed. Learned trial Court has failed to appreciate that the plaintiff would not get any exclusive right or title over the subject property. Learned trial Court has failed to appreciate that where it is established or admitted that the joint family which possessed joint family property, which from its nature and relative value, may have formed a nucleus from which the property in 3 question may have been acquired, the presumption arises that it was a joint property and the burden shifts to the party alleging self-acquired. Learned trial Court has failed to appreciate that no evidence has been led by the plaintiff to show that he had separate income, from which, he brought to the suit property and thus property is not joint family property, therefore in absence of such evidence he cannot succeed the suit. He further submits that the learned trial Court has failed to appreciate that the suit property is the joint family property of the plaintiff and defendants and the learned trial Court has failed to appreciate that the plaintiff had filed suit for eviction from the dwelling house seeking the eviction of defendants from the dwelling house as the suit property is i.e. land bearing Khasra No. 524/1, therefore according to the Court Fees Act, 1870 under Section 7(5), the ad-valorem Court fee is required to be paid for the purpose of eviction, the plaintiff has valued the suit property as Rs. 45,00,000/-, and there is no proper valuation of the suit and the above issues are between the Court and the plaintiff. Therefore, before acceptance of the suit for further proceedings, the learned trial Court ought to have directed the plaintiff to affix the proper Court fees. The suit property is the house, however the decree which has been granted for eviction from Khasra No. 524/1, according to the case of plaintiff itself on the above land, there is double storey house, which has already been constructed. According to the plaintiff, they are residing in the house since 1984-85, but the learned trial Court did not appreciate oral and documentary evidence minutely and thereby gave wrong findings, therefore, the impugned judgment and decree are liable to be set aside. In support of his contention, he has placed reliance upon the judgment of Hon’ble Apex in the matters of Surendra Kumar vs. Phoolchand and Anr.,1 D.S. Lakshma & Anr. vs. L. Balasubramanyam & Anr. 2 and in the matter of R. Kumar vs. G. 1 (1996) 2 SCC 491 2 (2003) 10 SCC 310 4 Jaganmoorthy 3 passed by Hon’ble Madras High Court and in the matter of Mulk Raj Khullar vs. Anil Kapur and Ors. 4 Passed by Hon’ble Delhi High Court. 6. Learned counsel appearing for plaintiff supports the impugned judgment and decree and submits that the learned trial Court after minutely appreciating the oral and documentary evidence, rightly decreed the suit in favour of the plaintiff. Therefore, the impugned judgment and decree are well merited and do not call for any interference by this Court. The defendants did not raise any objection regarding the Court fees in their written statements and it is evident that the plaintiff is the owner and he possess the suit property and he valued suit as per Court Fees Act, 1860 and Suits Valuation Act, 1887. In support of his contention, he has placed reliance upon the judgment of the Hon’ble M.P. High Court in the matter of Smt. Sabina alias Farida vs. Mohd. Abdul Wasi 5 7. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the learned trial Court with utmost circumspection and carefully as well. 8. On the basis of pleadings made by the parties, learned trial Court framed the 05 issues, which are reproduced hereinbelow for ready reference as under:- S. No. Issue Finding 1. Is the plaintiff entitled to a permanent injunction against the defendants from interfering with the house built on the land situated in plot number 524/1 area 1500 square feet situated at village Kasaridih, against the defendants? Yes 2. Whether Relief & Costs? As per clause 16 3. Is the plaintiff entitled to a decree of eviction against the defendants in respect of the suit Yes 3 2017 SCC OnLine Mad 330105 4 2013 (139) DRJ 303 5 AIR 1997 Madhya Pradesh 25 5 property? 4. Whether the suit property jointly constructed by the plaintiff and the defendants? No 5. Whether the plaintiff is the sole owner of the suit property? Yes 9. The plaintiff had filed a civil suit against the defendants for decree of eviction and permanent injunction on this ground that he is the owner of the suit property. Defendants have denied the ownership of plaintiff and submitted that the suit property is joint family property, the property was purchased in the name of the plaintiff by his late father Rahim Khan and house situated on the suit property was built through the combined contribution of all the siblings of the plaintiff along with late Rahim Khan. 10. The plaintiff has examined himself to prove his case and exhibited six documents as Exs. P/1 to P/6. Defendants have examined as many as 07 witnesses, but did not file any documents in support of their pleadings. 11. PW-1 Abdul Razzak Khan has exhibited sale deed vide Ex. P/1, application for certification vide Ex. P/2 , notice sent by Court Officer on Special Duty, District- Durg vide Ex. P/3, Rin Pustika ( ऋण पुस्तिका) vide Ex. P/4, Sanctioned house map by Municipal Corporation, Durg vide Ex. P/5 and electricity bill vide Ex. P/6. He denied the suggestion in his cross-examination that his father purchased the said property in his name. He has also denied the suggestion that siblings have also contributed in constructing the house. He has admitted this fact that he is not residing in this house and presently he is living in Kuntal Board, Durg. 12. DW-1 Abdul Sattar Khan has admitted the suggestion of plaintiff that disputed house is in name of his elder brother plaintiff/Abdul Razzak Khan and the said property was purchased by his elder brother from Vijay Dau in the year 1980. He admitted this suggestion that he is not aware of the fact regarding the amount being contributed by his father as well as his siblings and also how much money was being 6 given by selling the land situated at Ahiwara. He has also admitted that his brothers namely Abdul Salam Khan, Abdul Gaffar Khan had built their own houses. He has further admitted this fact that in the year 2013, all siblings had filed a suit against the plaintiff, i.e, elder brother Abdul Razzaq Khan to restrain him from selling the said suit property and to give him our share in the partition, however, he is not aware of the said fact that the said suit was dismissed. Furthermore, he admitted this fact that Abdul Salam Khan, Abdul Gaffar Khan and sister Noor Jahan Begum are living in the house constructed by themselves and he along with Niyamat Khan, Abdul Samad Khan live in a rented house. 13. DW-2 Bilquis Begam/defendant No. 2/appellant herein has admitted in her cross-examination that she was minor, when the registry and subsequent construction work of the said suit property took place, hence she cannot say whether Abdul Razzaq Khan has paid the full amount for the registry and construction of the house or not. She has also admitted that the registered owner of the said property is her brother plaintiff/Abdul Razzak Khan and siblings have never held any social or any other meeting regarding the dispute of the said property between them. 14. Other witnesses i.e., DW-3 Abdul Gaffar Khan, DW-4 Abdul Afroz, DW-5 Abdul Salam Khan, DW-6 Nyamatullah and DW-7 Abdul Samad Khan have deposed that the suit property was joint property and the house constructed by them too, but they admitted in their cross-examinations that they do not have any documents to substantiate their statements. They have also admitted this fact that they filed suit against the elder brother/plaintiff and they were unable to prove their claim against the plaintiff. Further, they have admitted that registered sale deed was executed in the name of the plaintiff when they were much younger at that time, so learned trial Court rightly finds that defendants have failed to prove Issue No. 4 in their favour that whether the suit property jointly constructed by the plaintiff and the defendants. Issue Nos. 1, 3 and 5 have been decided by learned trial Court in favour 7 of the plaintiff and looking to the documents as well as electricity bill filed by plaintiff in this regard, it is evident that plaintiff is the registered owner of the disputed suit property. 15. As regards objection of the defendants regarding the Court fees, it has been held by Hon’ble M.P. High Court in the matter of Smt. Sabina (supra) in paras 4 and 5 are as under:- 4. The true test for ascertaining whether the consequential relief in fact flows from the declaratory relief is as to whether the said consequential relief can be claimed independently of the declaration as a substantial relief or not. Every injunction in a suit for declaration would not follow from the declaration. In a case where plaintiff is in possession of the property in his own rights, comes before the Court and seeks declaration that the property belongs to him and the other party cannot interfere with his possession then it cannot be said that plaintiff is required" to pay the ad valorem Court-fees because the relief of injunction is a consequential relief. As observed above the relief of injunction if can independently he claimed then in every case it would not be a consequential relief. It is settled law that if a person is in settled possession he cannot be evicted except in accordance with law. Such a person if claims a declaration of his title and injunction that the defendants be restrained from interfering with his possession then the relief of injunction is not a consequence of the declaration because even if the Court is of the opinion that the declaration cannot be made in favour of the plaintiff then 8 too the Court will grant an injunction in favour of the person who is in settled possession. Such a person would be called upon to value both the reliefs separately and each of the reliefs would be independent of the other. In a suit of this nature the plaintiff is not seeking the relief of injunction as consequential relief but is entitled to claim the same because of his settled possession. In such a case Section 7(iv) (d) of the Court-fees Act would be applicable for valuing the relief of injunction and Article 17 of Schedule II of the Act would provide the Court-fees for the said declaration. In the matter of Sanik Nagar Durga G.N. Samiti v. Indore City Improvement Trust, 1983 MPWN Note No. 66, in almost similar situation where the plaintiff sought for the relief of declaration and injunction to restrain the defendant from starting the construction over the suit land, this Court observed that in fact the plaintiff was claiming two distinct reliefs, one for declaration of title and the other for preventive injunction. The relief of injunction in fact was not consequential to the relief of declaration because even without claiming the declaration relief, plaintiff could have brought the suit on the same pleadings seeking the relief for injunction only. These were two distinct and separate reliefs. The High Court further observed that the relief of injunction though related to question of plaintiffs title, was not consequential to the declaration. In the instant case also the plaintiff has sought-declaration of her title and has prayed for injunction. Each of the relief can be claimed separately. If it is found that the reliefs can be claimed 9 separately then the relief of injunction would not be consequential relief to the relief of declaration. In the case in hands the plaintiff has rightly valued the suit for the purposes of the declaration and was liable to pay Court-fee in accordance with Article 17 of Schedule II. The Court below has not found any fault with the valuation of the relief and payment of Court-fees on the relief of injunction, therefore, it does not need any discussion. 5. The Court below was alive to the fact that while seeking declaration, the plaintiff who is in possession of the property is not required to pay the Court-fees on the market value of the property but got itself unnecessarily involved in the provisions of the Court-fees Act and Section 8 of the Suits Valuation Act. ” 16. In the light of above cited judgement, in this case also, learned trial Court finds that the plaintiff is the sole owner of the suit property and defendants have failed to prove the joint ownership property, so learned trial Court on the basis of registered document and other documents filed by the plaintiff, rightly decided all the issues in favour of him and against the defendants. So, we do not find any illegality or irregularity warranting interference by this Court in the impugned judgment passed by learned trial Court. 17. In the result, the appeal being bereft of any merits is liable to be and is, accordingly, dismissed. 18. A decree be drawn accordingly. 19. Parties to bear their own cost. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) JUDGE JUDGE AMIT PATEL