# Abdul Atiq and another v. Sub Divisional Magistrate and others

- **Citation:** (2012) 1 ILRA 6
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-05
- **Bench:** Rajiv Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdul-atiq-and-another-v-sub-divisional-magistrate-and-others-42253
- **Pages:** 2

## Headnote

Hindu Marriage Act, 1955-Section 28Appeal against judgment decree passed
under Section 13 of the Act-valuation of
appeal shown Rs. 10,000-appeal before
High Court-held not maintainable.

Held: Para 4 and 5

The
aforesaid
clearly
indicates
that
Section 28 of the Hindu Marriage Act
does not provide for appeal against
judgement. It provides for appeal only
against decree and since an appeal
under Section 19 of the Family Courts
Act lies only against a judgement or
order, no appeal would lie under Section
19 of the Family Courts Act against a
decree. An appeal against a decree
passed by the Civil Judge would lie under
Section 28 of the Hindu Marriage Act.

Since in the present case the impugned
judgement
and
decree
have
been
assailed under Section 28 of the Hindu
Marriage Act and the valuation of this
appeal is Rs. 10,000/-, the pecuniary
jurisdiction
as
well
as
appellate
jurisdiction would not be with the High
Court. An appeal against a decree passed
by the original Court under Section 13 of
the Hindu Marriage Act, would lie before

## Text

6 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
service and also in the absence of any
clinching evidence whereupon it could be
held that his date of birth is 1962 and
further in view of Rule 2 of the Rules of
1974 which prohibits entertaining an
application for correction of date of birth
where the employee, at the time of entry
in service, was not high school passed and
in that event the date of birth mentioned
in the service record shall be deemed to
be correct date of birth of such employee,
the relief sought in the writ petition and in
this appeal cannot be granted.

19. In view of above, we do not find
any fault in the order of the learned Single
Judge.

20. The appeal, being without merit,
stands dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.01.2012

BEFORE
THE HON'BLE RAJIV SHARMA,J.

Misc. Single No. - 4 of 1994

Abdul Atiq and another
 ...Petitioner
Versus
Sub Divisional Magistrate and others

 ...Respondents

Counsel for the Petitioner:
Sri S.C.Sitapuri
Sri V.Bhatia

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226Demand of additional stamp duty-no
allegation of concealment or fraud by
petitioner-petition pending since 1994No counter affidavit filed-facts remained
un-contradicted-held-mere assumptionsstamp duty can not be imposed.

Held: Para 5

It is not the case of the respondents that
the land in question was under valued.
For imposing liability for payment of
additional stamp duty, it would be the
duty of the respondents to categorically
show that there was some concealment
made by the petitioner at the time of
execution of the sale deed. On mere
presumption, stamp duty cannot be
imposed after valuing the constructions.
Case law discussed:
[2007 All.C.J. 718]

(Delivered by Hon'ble Rajiv Sharma,J. )

1. Heard.

2. Counsel for the petitioner says
that the petitioner had purchased a
house,which consists of room and a
Verandahs in district Biswan Sitapur of
which sale deed was executed on 3.2.1992
and had also paid a total sum of Rs.
5380/- as stamp duty. Thereafter all of a
sudden, the opposite party no.1-Sub
Divisional
Officer,
Stamp
Collector,
Biswan passed an order requiring the
petitioner to make good the deficiency in
the stamp duty and also imposed ten times
penalty.

3. It has been vehemently contended
that neither any notice before passing of
the impugned order was given or actually
served upon by the petitioner either by the
opposite party no.1 or by the Tehsildar,
who is said to have conducted inquiry in
the matter. Therefore, the impugned order
is in breach of the provisions of natural
justice apart from being bad in law as the
penalty is excess than the prescribed
under
the
relevant
provisions.
1 All] Smt. Suman V. Brij Kishore
7

4. It is to be noted that this writ
petition was filed in the year 1994 and
this court while directing the respondents
to file counter affidavit also passed an adinterim order dated 3.1.1994 staying the
operation of the impugned order. It is
unfortunate that till date no counter
affidavit has been filed and as such
averments made in the writ petitioner
remained unrebutted.

5. It is not the case of the
respondents that the land in question was
under valued. For imposing liability for
payment of additional stamp duty, it
would be the duty of the respondents to
categorically show that there was some
concealment made by the petitioner at the
time of execution of the sale deed. On
mere presumption, stamp duty cannot be
imposed after valuing the constructions. It
is also pertinent to mention that a Full
Bench of this Court in Shri Ramesh
Chandra Srivastava, Kanpur vs. State
of
U.P.
and
others
[2007
All.C.J.718]held that the market value of
the property has to be determined with
reference to the date on which the
document is executed.

6. In view of the aforesaid
discussions, the impugned order dated
22.9.1993 is hereby set-aside. Consequent
to follow. However, it will be open for the
authorities to pass fresh order, if they so
desire after giving opportunity of hearing
to the petitioners.

7. The writ petition stands allowed
in above terms.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2012

BEFORE
THE HON'BLE SANJAY MISRA, J.

First Appeal No. - 13 of 2012

Smt. Suman

 ...Petitioner
Versus
Braj Kishore

 ...Respondent

Counsel for the Appellant:
Sri Atul Srivastava

Counsel for the Respondents:
.......................................

Hindu Marriage Act, 1955-Section 28Appeal against judgment decree passed
under Section 13 of the Act-valuation of
appeal shown Rs. 10,000-appeal before
High Court-held not maintainable.

Held: Para 4 and 5

The
aforesaid
clearly
indicates
that
Section 28 of the Hindu Marriage Act
does not provide for appeal against
judgement. It provides for appeal only
against decree and since an appeal
under Section 19 of the Family Courts
Act lies only against a judgement or
order, no appeal would lie under Section
19 of the Family Courts Act against a
decree. An appeal against a decree
passed by the Civil Judge would lie under
Section 28 of the Hindu Marriage Act.

Since in the present case the impugned
judgement
and
decree
have
been
assailed under Section 28 of the Hindu
Marriage Act and the valuation of this
appeal is Rs. 10,000/-, the pecuniary
jurisdiction
as
well
as
appellate
jurisdiction would not be with the High
Court. An appeal against a decree passed
by the original Court under Section 13 of
the Hindu Marriage Act, would lie before