Judicial Administration Training Institute

15, College Road, Dhaka

Email: jatidak@yahoo.com

42nd Special Foundation Training Courses for the Assistant Judges/

Equivalent Judicial Officers (October 24, 2021-December 22, 2021)

Module 5:
Oral Presentation on Case Study

Case Study Number: 15

Submitted by:

Signature:

Name: Iftekhar Sahariar

Designation: Assistant Judge, Joypurhat.

Roll No.: 15

Submitted to:

The Course Director

42nd Special Foundation Training Courses for the Assistant Judges/ Equivalent

Judicial Officers

And

Director (Training)
 Judicial Administration Training Institute

Module 5: Oral Presentation on Case Study

Roll Number: 15

Case Study Number: 15

Short facts: As per the plaintiff’s claim he is in the possession of certain land by purchase
from a co-sharer, but there was no amicable or legal partition in the suit land. Finding
inconvenience in possessing the purchased land his request for partition was denied by the
other co-sharers. Consequently, he filed a suit for declaration of title in the suit land and also
for partition with the payment of fixed court fee.

The defendant questioned the maintainability of the suit in their written statement on the
ground of not paying the ad-valorem court fee.

The plaintiff’s advocate’s argued that since the plaintiff is in possession of his share the suit is
maintainable on payment of fixed Court fee and the Learned Assistant Judge decreed the suit.

Question to be decided: Whether the learned Assistant Judge committed any illegality in
decreeing the suit?

Relevant laws: The Court-Fees Act, 1870 [ACT NO.VII OF 1870]

The Specific Relief Act, 1877 [ACT NO. I OF 1877]

The Code of Civil Procedure, 1908 [ACT NO.V OF 1908]

The Transfer of Property Act, 1882 [ACT NO. IV OF 1882]

Decision: In the illustrated case, the learned Assistant Judge committed illegality in decreeing
the suit. According to the Section 7 (iv) (c) of The Court-Fees Act, 1870, in obtaining a
declaratory decree, where consequential relief is prayed the amount of court fee will be
computed according to the amount the relief is sought is valued in the plaint. As per the
authority put by 49 DLR 92 the plaintiff needed to deposit the ad-valorem court fee.
Therefore, on consideration of the facts, circumstances and relevant laws it is evident that the
learned Assistant Judge committed illegality in decreeing the suit as there was deficiency of
court fees.

Reasoning: In the illustrated case, the plaintiff filed a suit for declaration of title in the suit
land and also prayed for the partition of the suit land with the payment of fixed court fee. By
analyzing the facts of the given problem, it can be perceived that for the inconveniences in
possessing the purchased land, plaintiff asked for the partition of the suit land. Though
plaintiff requested the other co-sharers to effect partition but his request was denied. The
plaintiff claims the suit land and his basis of such claim is purchase from a co-sharer. As per
the section 44 of the Transfer of Property Act, 1882 (hereinafter referred as “TP Act”) the
transferree acquires share or interest in the land of co-owner of that particular immovable
property. The spirit of the section 44 of the TP Act is the transfer put the transferee in the
footing of that transferor co-owner in the suit land. Here, in the given problem, the plaintiff in
the suit land by purchase from a co-sharer acquired share and interest in the suit land of that
co-owner as per section 44 of the TP Act. Section 44 of the TP Act also prescribes the right to
enforce a partition of the immovable property. Therefore, the suit brought by the plaintiff for
partition is quite maintainable as he has the right to enforce partition as a purchaser in the suit
land. Also As per section 44 of the TP Act, the plaintiff acquired the right to joint possession
the land. But from the facts of given problem, it is seen that in absence of any sort of partition
in the suit land, the plaintiff faced the inconveniences, that is reason the plaintiff came to the
Court and asked for the partition of suit land.

From the given facts of problem, it can be perceived that the prayer for declaration of title is
the substantive relief for the plaintiff because the right, title and interest of the plaintiff need
to be ascertained first in the suit land then partition of the suit land can be effected amongst
the co-sharer.

In terms of prayer for declaration of title in the suit land, the section 42 of the Specific Relief
Act (hereinafter referred as “SR Act”) prescribes that where plaintiff is able to seek
consequential relief he must seek it, otherwise the suit shall fail. From the given fact, it is
seen that plaintiff found inconvenience to possess his purchased land without the partition.
Thereafter, the plaintiff also asked for the partition of suit land as it was inconvenient for him
to possess the suit land without the partition. Being able to seek consequential relief plaintiff
rightly asked for the partition in the suit land and because of such framing the suit is quite
maintainable and is not hit by the bar prescribed by the SR Act.

In this suit the plaintiff asked for the declaration of title because plaintiff wanted to confirm
his title in his purchased land. Plaintiff prayed for declarartion because he wanted his title,
interest to be declared by the competent court. If plaintiff is given the declaratory relief, no
other co-sharer of the land can’t question his right, title and interest in the purchased land.

Moreover, about framing of the suit Order II, rule-1 of The Code of Civil Procedure
(hereinafter referred as “CPC”), prescribes that every suit shall be framed so as to afford
ground for final decision upon subjects in dispute and to prevent further litigation. In terms of
framing of the suit Order II, rule-2 of CPC mandates that every suit shall include the whole
claim of plaintiff which he is entitled to make in the respect of the cause of action. Here to
relate these provisions of law with the given facts of the problem, the plaintiff prayed for the
partition in the suit land and declaration of his title in the suit land which comply the
provisions of law. Because plaintiff brought the two prayers to settle dispute under the same
suit and specifcally prayed for the declaration in the purchased suit land.

Now, let’s analyze the moot point of controversary between the plaintiff and defendant.
Defendants questioned the maintainability of the suit on the point of non-depositing the ad-
valorem court fee in their written statement. Here, plaintiff paid fixed Court fee and the trial
Court learned Assistant Judge decreed the suit. And the question of the given problem is
whether the learned Assistant Judge committed any illegality in decreeing the suit.

To determine the question of nature and scope of a partition suit in 12 DLR (1960) 329 it was
held that “...in determining this question the allegations made by the plaintiff alone must be
considered and that the pleas raised by the defendant do not affect the question...”12 DLR
(1960) 329

In computing the court fees of the suit, the plea raised by defendant won’t make any effect
and the prayers in the plaint need to be considered. From the given facts of the problem, it is
found that plaintiff is in possession and he made both the prayer of declaration and partition.
So, on the basis of plaintiff’s prayer for both, the court fees need to be determined.

In analyzing the Court-Fees Act, 1870 (hereinafter referred as “C.F Act”) provisions relating
to the suit for partition, section 7 viA of the said Act prescribes that when the plaintiff is
excluded from possession and he seeks a share upon partition, the suit shall be valued upon
the plaintiff’s share and ad valorem court fee shall be paid. But here in the given problem,
plaintiff claims that he is in possession and defendant in their written statement didn’t deny it,
that’s why this provision of section 7 viA doesn’t apply to the given problem.

Moreso, Schedule II, Article 12 (vi) of C.F Act, prescribes that when plaintiff claims for
partition in a joint property when he is in the possession of such property simple court fee
shall be paid which is 300.00 taka. But in the given problem though plaintiff is in possession
of the suit land he also asked for declaration of his title. So, Schedule II, Article 12 (vi) of C.F
Act can’t be applied into the given facts as well.

A case reference Mahmudul Huq and others v. Nowab Ali Chowdhury and others 49 DLR
92=49 DLR 405 can be mentioned in this respect. In that suit, the plaintiff filed a partition
suit and they deposited ad-valorem court fee. Trial Court treated the suit as establishment of
title and partition. High Court Division (hereinafter referred as “HCD”) in the cited case held
that, the trial court rightly treated the suit as establishment of title and partition because the
question of title was seriously involved in the suit and the plaintiff paid ad-valorem court
fees. HCD held that, from the alternative prayer of the plaint and payment of ad valorem
court fee the suit was for declaration of title and partition. In that suit, the plaintiff was not
out of possession, this is why this case is relevant with the given facts of the problem. HCD
held in 49 DLR 92=49 DLR 405 that,

“A simple suit for partition is to be filed with a fixed court-fee under article 17(V-A) of the
Schedule II of the court-fees Act if the plaintiff alleges that he is in possession of the suit
property. When a suit is filed for partition and for recovery of possession by the plaintiff
alleging that he is out of possession then he is to pay ad valorem court-fee on the value of his
share of the suit property under section 7(VI-A) of the Court-fees Act. Even if the plaintiff
claims to be in possession of his share of the suit property but prays for declaration of his title
and partition then also he is to pay ad valorem Court fee on the value of his share of the suit
property under section 7(IV)(C) of the Court-fees Act as partition in such a suit is a
consequential relief to the prayer for declaration of title in his share of the suit property as in
the present suit.” 49 DLR 92=49 DLR 405=1 MLR 67

It is pertinent to mention that, Article 17 (V-A) of schedule II of C.F Act is now repealed and
Schedule II, Article 12 (vi) of C.F Act deals with the simple partition suit where plaintiff is in
possession in the suit land.

Though facts of the given problem is somewhat different than 49 DLR 92=49 DLR 405=1
MLR 67 regarding the alternative prayer for declaration but the authority of this judgment
still relevant to the given problem.

As per the Section 7 (iv) (c) of The Court-Fees Act, 1870, in obtaining a declaratory decree,
where consequential relief is prayed the amount of court fee will be computed according to
the amount the relief is sought is valued in the plaint. As per the authority put in 49 DLR 92
the prayer for partition is the consequential relief to the prayer for declarartion of title in the
given problem and the plaintiff needs to deposit ad-valorem court fee.

Here, plaintiff is in possession and claim for partition of the suit land. For this the plaintiff
needs to pay the ad-valorem court fee in this suit on the value of his share.

Another case reference Noor Uddin vs. Alimuddin and others 3 ADC 916 can be mentioned
here. In this case, plaintiff filed partition suit and later on amended the plaint by inserting
amendment of plaint for declaration of title in the suit for partition. The amendment prayer
was rejected in the Joint District Judge Court but HCD allowed the amendment prayer. When
the suit went before the Appellate Division, the decision of HCD was upheld. Appellate
Division held that with the amendment plaintiff added a prayer for declaration of title and
payment of ad valorem court fee and that prayer would not change the nature and character of
the suit.

So, in this aspect it can be perceived from the above cited Appellate Division case that, in a
partition suit when plaintiff inserts a prayer for declaration, ad valorem court fee is to be paid.
To relate this decision with the given fact, ad valorem court fee is to be paid by the plaintiff.
Therefore, in my opinion the learned Assistant Judge committed illegality in decreeing the
suit on fixed court fee.

In the given problem the learned Assitant Judge could have asked for ad-valorem court fee
from the plaintiff as the plaintiff paid fixed court fee in the suit and the Court has power to
make up the deficiency of court fee as per section 149 of CPC. Where insufficient court fee is
paid section 8B of C.F Act also gives power to the Court to fix a date for payment of due
court fee of plaintiff, failure of which results in dismissal of the suit as per section 8B (3) of
C.F. Act.

Reference:

Noor Uddin vs. Alimuddin and others 3 ADC 916

Mahmudul Huq and others v. Nowab Ali Chowdhury and others 49 DLR 92=49 DLR
405=1 MLR 67

Khayertullah Mondal and ors. vs. Kamalakanta Saha and ors. 12 DLR (1960) 329

Signature:

Name: Iftekhar Sahariar

Designation: Assistant Judge, Joypurhat.

Roll: 15