# Vijay Dembla Revisionist v. Sanjay Dembla & Anr

- **Citation:** (2022) 5 ILRA 1527
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-09
- **Case number:** Civil Revision No. 13 of 2022
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-dembla-revisionist-v-sanjay-dembla-anr-48441
- **Pages:** 7

## Headnote

A. Civil Law - STAMP ACT,1899 - ARTICLE
17(iii) of the SECOND SCHEDULE - It is
applicable in cases where the plaintiff seeks to
obtain declaratory decree without consequential
reliefs and there is no other provision in the
Court Fees Act for payment of fee relating to
relief claimed.
1528 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Civil Law - COURT FEES ACT, 1870 -
SECTION 17(iv-A) - As applicable in St. of
U.P. this section specifialy provides for payment
of Court fee in a case where the suit is for
declaration/
invoking
cancellation
of
an
instrument relating to property.
Revision Allowed. (E-12)

List of Cases cited:-

## Text

5 All. Vijay Dembla Vs. Sanjay Dembla & Anr.
1527
is answered in the affirmative in terms that
the suit is maintainable, unaffected by the
provisions of Section 60 of the Indian
Easements Act.

45. So far as the third substantial
question
of
law
is
concerned,
the
defendants have strenuously urged that
there being a question of title to the
agricultural land involved, an appropriate
issue should have been framed and sent to
the Assistant Collector for a decision of the
same. Learned Counsel for the defendants
has strongly disputed it. He submits that
this substantial question of law does not
arise for consideration in this appeal at all.
It is submitted that the plaintiff and the
proforma defendants are recorded title
holders, with no hint of an interest for the
defendants in the suit property being
discernible anywhere. The defendants' suit
under Section 229-B read with Section 176
of the U.P. Z.A. & L.R. Act has failed and
all issues of title are now concluded, in
view of the provisions of Section 49 of the
U.P. C.H. Act. He submits that during
consolidation operations, no objection
about title has been raised by the
defendants against the plaintiff or his
predecessors.
Now,
therefore,
the
defendants are precluded from raising the
question of title in view of the bar
contained in Section 49 of the U.P. C.H.
Act. This Court has already remarked that
there is absolutely no evidence noticed by
the two Courts of fact below, where a
triable case relating to title may have been
raised by the defendants. Substantial
Question of Law No.(3) does not, therefore,
arise for consideration and is not required
to be answered in view of the provisions of
sub-Section (5) of Section 100 CPC.

46. In the result, this appeal fails and
is dismissed with costs throughout.

47. The interim stay order dated
06.11.1992 is hereby vacated.

Order on the Cross-objections

1. This cross-objection was filed on
22.02.1993 by the plaintiff against the part
of the decree by which his claim for mesne
profits has been refused by the Lower
Appellate Court. No substantial question of
law
has
been
formulated
in
the
memorandum
of
the
cross-objections.
During the hearing of the appeal also, no
substantial question of law was pointed out
by the learned Counsel for the plaintiff, on
the basis of which the cross-objections
could be admitted to hearing.

2.
The
cross-objection,
accordingly fails and is dismissed.
----------
(2022)05ILR A1527
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.05.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Civil Revision No. 13 of 2022

Vijay Dembla ...Revisionist
Versus
Sanjay Dembla & Anr. ...Opposite Parties

Counsel for the Revisionist:
Brijesh Kumar

Counsel for the Opposite Parties:

A. Civil Law - STAMP ACT,1899 - ARTICLE
17(iii) of the SECOND SCHEDULE - It is
applicable in cases where the plaintiff seeks to
obtain declaratory decree without consequential
reliefs and there is no other provision in the
Court Fees Act for payment of fee relating to
relief claimed.
1528 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Civil Law - COURT FEES ACT, 1870 -
SECTION 17(iv-A) - As applicable in St. of
U.P. this section specifialy provides for payment
of Court fee in a case where the suit is for
declaration/
invoking
cancellation
of
an
instrument relating to property.
Revision Allowed. (E-12)

List of Cases cited:-

1. Nami Chand Vs The Edward Mills Co. Ltd. AIR
1953 SC 28

2. Shailendra Bhardwaj & ors. Vs Chandra Pal &
anr. (2013) 1 SCC 579
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard Sri B. K. Saxena, learned
counsel for the revisionist and Sri Ratnesh
Chandra, learned counsel for the opposite
party no.1.

2. This Revision has been filed
challenging the order dated 04.04.2022
passed in Original Suit No. 256 of 2007,
''Vijay Dembla vs. Sanjay Dembla and
Others by the Court of Civil Judge(Senior
Division), Lucknow where the learned Trial
Court has decided the issue of Valuation of
the Suit i.e. Issue no. 3 and also Issue no.4
relating to payment of enhanced court fee
thereon.

3. It has been submitted by the
learned counsel for the revisionist that the
plaintiff i.e. the petitioner filed a Suit for
Declaration of Will executed by his mother
and also the mother of the opposite party
no.1 and 2, Late Rekha Devi Dembla as
void and for the Permanent Injunction
injuncting the defendant from interfering in
the property in dispute. According to the
Plaint, a copy of which has been filed as
annexure-02 of the application for interim
relief, paragraph 14 mentions the contents
of the Will and states such contents as
factually incorrect, and paragraph 53
mentions, the valuation for the purpose of
pecuniary jurisdiction of court fee. As the
relief sought was for Declaration in respect
of the Will valuation of which was not
possible it was notionally fixed at Rs.
35,000/- upon which maximum court fee
Rs. 200/- was paid and for further relief of
permanent injunction regarding property in
dispute Rs.35,00,000/- was fixed as market
value and a maximum court fee of Rs.
500/- was paid. The total valuation of the
Suit as per the plaint was Rs.35,35,000/- on
which Court Fee of Rs.700/- was paid.
Against such a statement being made in the
plaint the respondent no.1 filed a Written
Statement. While replying to the contents
of paragraph 53 of the plaint in paragraph
45 of the Written Statement, it was stated
that they were misconceived and wrong
and that the Suit filed by the plaintiff for
Declaration and Permanent Injunction was
not maintainable, and also that the Court
Fee had not been properly paid by the
plaintiff, and therefore, the Suit was liable
to be dismissed.

4. It has been argued by the learned
counsel for the plaintiff that there is no
mention of less valuation of the Suit in Para
45 of the Written Statement. The only
mention is with regard to Payment of less
Court Fee. It has been also argued that
Valuation of Suit and Court Fee are two
different things and therefore, two issues
were
framed
issue
no.3
relating
to
Valuation of Suit, Issue no.4 relating to
Court Fee paid. It has been further argued
that the learned trial court relied upon two
sheets of papers submitted during the
course of the arguments by the counsel for
the respondent no.1 describing a large
number of properties and giving their
5 All. Vijay Dembla Vs. Sanjay Dembla & Anr.
1529
valuation arbitrarily. Such sheets of paper
were not filed as documents alongwith list
of documents relied upon by the respondent
in the written statement, they were not filed
alongwith the objection. Not being part of
the pleadings in the written statement, they
could not have been considered by the trial
court while passing the order impugned.

5. It has been argued on the basis of
an
Execution
Application
filed
on
15.05.1998, a copy of which has been filed
as Annexure-02 to the Application for
Interim Relief, that two consent awards
dated 18.08.1996 and 17.08.1997 had been
given by the Sole Arbitrator with regard to
the assets left by father of the revisionist
and the respondents no.1 and 2 Late Shri
Chander Dembla with relation to family
assets, for example, Cash, FDRs, Shares,
Investment, etc. and all business and
properties in dispute between the parties.
As per such Awards for which Execution
Application has already been filed by the
revisionist, only Rs. 5,00,000/- from the
family assets were reserved for Late Rekha
Devi Dembla, the Mother and each of the
two sons i.e. Vijay Dembla and Sanjay
Dembla were required to give Rs. 2,500/-
per month to her as pocket expenses. In the
said Execution Application it was stated
that
since
Sanjay
Dembla
was
not
disclosing all the properties belonging to
their father, the revisionist was reserving
his right to file such details of assets after
finding them out.

6. It has been argued that the
Execution Application filed under Section
36 of the Arbitration and Cancellation Act,
1996 for execution of the two consent
awards is still pending before the District
Judge.

7. It has been argued that under
Section 7(iv-A) of the Court Fees Act as
applicable in U.P., for cancellation or
adjudging void an instrument or a decree
involving money or property, the Court Fee
has to be paid on the Valuation of such
property. The valuation not being disputed
in the Written Statement by the respondent
and only loose sheets of paper being
provided
to
the
Trial
Court
for
determination of valuation at the time of
argument, no reliance on such loose sheets
of papers could have been placed by the
learned Trial Court for fixing valuation.
The valuation which was mentioned in the
plaint by the plaintiff alone could have
been relied upon.

8. Learned counsel for the revisionist
has referred to Section 6 of the Court Fees
Act which refers to court fee and Sub
Section (3) thereof, where if a question of
deficiency in court fees in respect of any
claim/ or memorandum of appeal is raised,
the trial court shall proceed to record a
finding on the Court Fee and whether it had
been paid sufficiently or not. If the court
finds that the court fee is insufficient it can
call upon the plaintiff or the appellant as the
case may be to make good the deficiency
within time as prescribed by the trial
court/appellate court and in case of failure to
do so it may reject the plaint or the appeal.
The trial court/appellate court may also for
sufficient reasons grant time or extend the
time for payment of deficiency in court fee
and may also give opportunity to the
plaintiff or the appellants for filing security
in lieu thereof. But in any case no judgment
shall be delivered finally on the plaint or the
appeal without such deficiency of court fee
as determined by the court being made good
by the plaintiff for the appellant.
1530 INDIAN LAW REPORTS ALLAHABAD SERIES

It has been argued that under
Section 12 of the Court Fees Act, a
question of valuation for the purpose of
determination of the amount of fee payable
on the plaint or the appeal has to be decided
by the Court and such decision shall be
final as between the parties to the
Suit/Appeal. It has been argued on the basis
of such Section of the Court Fees Act, 1870
(as applicable State of U.P.) that the order
passed by the trial court in this case has
attained finality and therefore, was a
Revisable Order as has been held by the
Supreme Court in the Case of Nami Chand
vs. The Edward Mills Company Limited
AIR 1953 SC 28 where the Supreme Court
held that the finality attached to the order
regarding valuation of Suit as given under
Section 12 of the Court Fee Act means that
the parties cannot impugne such a decision
by preferring an appeal, but that does not
confer on such decision a complete
immunity from examination in a higher
Court. Learned counsel for the petitioner
has read out the observations made by the
Supreme Court which are as follows:-

"------ in other words, Section 12
when it says that such a decision shall be
final between the parties, only makes the
decision of the Court on a question of
court-fee non-appealable and places it on
the same footing as other interlocutory
non-appealable orders under the Code and
it does no more than that. If a decision
under Section 12 is reached by assuming
jurisdiction which the Court does not
possess
or
without
observing
the
formalities
which
are
prescribed
for
reaching such a decision, the order
obviously would be revisable by the High
Court in the exercise of revisional powers.-
-----."

9. It has been argued by the learned
counsel for the revisionist that a perusal of
the trial court's order would show that the
formalities required for determination of
valuation as per procedure prescribed under
law were not followed and therefore, the
order passed by the trial court fixing
valuation and determining court fees as
insufficient is liable to be interfered with by
this Court in this revision.

10. It has also been argued by the
learned counsel for the revisionist that it is
evident from a bare perusal of the order under
challenge that not only inadmissible evidence
was taken into consideration by the trial court
but also the fixation of valuation of Suit at
Rupees Two Crores was completely without
any material on record, and therefore, the
order impugned can also to be said to be
perverse and liable to be set aside. Learned
counsel for the petitioner has placed reliance
upon a Coordinate Bench decision of this
Court in "Abhay Sood vs. Babu Butuk
Nath" in Civil Revision No. 116 of 2010
decided on 03.12.2012. The Court had
observed that in deciding a case, the court
should rely upon the evidence led by the
parties for deciding the case. "A court of law
cannot function as an ''assessor'. The
Assessment by the Court of law is nothing
short of introduction of a third case, which is
not permissible under Indian Judicial System.
While rejecting the values as proposed by one
either of the parties including the valuation
report submitted by one of them, the trial
court had enhanced the value of the property
to the detriment of the plaintiff, without any
substance or evidence. Such a determination
amounted to perversity which has been
defined as deliberately departing from what
is normal and reasonable and against the
material on record."

11.

Learned
counsel
for
the
respondent no.1, Sri Ratnesh Chandra, on
the other hand, has argued on the basis of
5 All. Vijay Dembla Vs. Sanjay Dembla & Anr.
1531
the plaint that the Suit was filed for
declaration and permanent injunction, the
declaration was sought for the Will
executed by the Mother of the plaintiff and
the defendant, Smt. Rekha Devi Dembla
w/o
Late
Sri
Chandra
Dembla
on
27.04.1998. For determining the validity of
a document, the valuation has to be done
only on the basis of the value of the
properties
as
mentioned
in
the
document/instrument. He has placed placed
before this Court a copy of Will dated
27.04.1998 made out by the Late Mother of
the parties wherein she has mentioned that
she is owned of 1/3 of all the property
owned by her husband including residential
houses, shopping complex, plots of land,
business, bank accounts, FDRs Shares etc.
alongwith her two sons, Vijay Dembla and
Sanjay Dembla. She had also mentioned in
her Will that being the only daughter of her
parents (who died much earlier), she had
also inherited property in Village Andal
District Burdwan in West Bengal. She had
a bank account in her name in the State
Bank of Saurashtra and also had movable
property and self acquired jewelry for
which she was the complete and sole owner
and no part of it belonged to anyone but
herself. It has been argued that when this
fact was placed before the trial court, the
trial court passed an order on 20.11.2021
directing the respondent no.1 to place on
record the details of all the properties that
were involved including movable and
immovable, which were either owned
solely by Late Rekha Devi Dembla, or in
part alongwith her two sons. On such a
direction being issued by the trial court, the
respondent no.1 had filed a list of such
properties. A copy of such list has been
filed as Annexure to the application for
interim relief, which shows that Late Rekha
Devi Dembla owned certain share in
residential house, plots of land, shops etc.
as well as property in District Burdwan,
West
Bengal,
the
total
estimated
immovable property came to about Rupees
Thirty One Crores Thirdy One Lacs and
odd. The list of movable properties and
their approximate value was also given
which including FDR's, bank accounts and
shares of more than Rupees Eleven Crores.
The total amount of movable property was
more than Rupees Twelve Crores Ninty
Lacs, the total approximate market value of
all the properties of Late Rekha Devi
Dembla was more than Rupees Forty Six
Crores. It was also mentioned that all the
above properties were already under an
injunction order passed by the District
Judge looking in Execution Case No. 6 of
1998, ''Vijay Dembla vs. Sanjay Dembla
since 1998 and that the plaintiff had
deliberately undervalued the property of
Late Rekha Devi Dembla, and if and when
such Will is declared void then alone, it
could be said that the property has a
notional value as submitted in the plaint.
The learned counsel for the respondent no.1
has pointed out paragraph 53 and Sub Para
(1) thereof as stated in the plaint which
says that the Will is incapable of valuation,
yet the plaintiff fixed a notional value of
the Will at Rs. 35,000/- only, and therefore,
paid maximum Court Fee of Rs. 200/-
thereon.
Learned
counsel
for
the
respondent also referred to Section 7(iv-A)
of the Court Fee Act, 1870 (as applicable in
the State of U. P.) which says that Court
Fee has to be paid ad-valorem as per the
valuation of the property involved in the
decree or instrument.

12.

Learned
counsel
for
the
respondent no.1 has placed reliance upon
judgment rendered by the Supreme Court
in the case of Shailendra Bhardwaj and
Ohers vs. Chandra Pal and Another
(2013) 1 SCC 579. He has referred to
1532 INDIAN LAW REPORTS ALLAHABAD SERIES
paragraph 2 of the said judgment where the
relief as claimed in the plaint is mentioned
by the Supreme Court and Paragraph 9,
which is the conclusion arrived at after
consideration of Section 7 (iv-A) (as
applicable to the State of U.P.). He has read
out the observations made by the Supreme
Court which are as follows:-

"9. The suit, in this case, was
filed after the death of the testator and,
therefore, the suit property covered by the
will has also to be valued. Since Section
7(iv-A) of the U. P. Amendment Act
specifically provides that payment of court
fee in case where the suit is for or involving
cancellation or adjudging/declaring null
and void decree for money or an
instrument, Article 17 (iii) of Schedule II of
the Court Fees Act would not apply. The U.
P. Amendment Act, therefore, is applicable
in the present case, despite the fact that no
consequential relief has been claimed.
Consequently, in terms of Section 7 (iv-A)
of the U. P. Amendment Act, the court fees
have to be computed according to the value
of the subject-matter and the trial court as
well as High Court have correctly held so."

13. It has been argued by the learned
counsel for the respondent no.1 that the
order of the trial court dated 20.11.2021 has
not been placed on record, which order of
the trial court is material and should be
considered
because
it
allowed
the
respondent no.1 the defendant in the said
suit, to place on record the correct
valuation of the property involved in the
Will of Late Rekha Devi Dembla. He has
argued
that
the
Shares
of
various
Companies alone that were involved in the
Will amounted to more than Rupees Eleven
Crores, besides there was property in West
Bengal, Jewelery etc. and the plaint itself
stated that the Will was incapable of
valuation. Yet the trial court somehow
came to conclusion that the property was
more than Rupees Two Crores and fixed
court fee, accordingly.

14. This Court has perused the order
impugned passed by the trial court and
finds that the trial court no doubt has stated
that the plaintiff has not mentioned the
details of the properties involved in the
Will, a declaration for which was sought,
and therefore, it had directed the defendant
to produce the list of properties movable
and immovable, which were a subject
matter of the Will of the testator. After
referring to the details as given by the
defendant, it has decided that the valuation
of the property involved in the instrument
i.e. the Will was much more then has been
disclosed
by
the
plaintiff,
and
has
thereafter, fixed its value as Rupees Two
Crores. How such a valuation of Rupees
Two Crores has been arrived at when the
document submitted by the defendant
showed that it was worth more than Rupees
Forty Six Crores is not evident from the
order impugned dated 04.04.2022.

15. This Court has perused the Will a
copy of which was been handed over to this
Court by the learned Counsel for the
respondent during the course of the
arguments. This Court has also perused the
papers filed by the respondent before the
trial court in pursuance of the order dated
20.11.2021. This Court has also carefully
considered the provisions of Article 17 (iii)
of the Second Schedule to the Stamp Act
and compared it with the language used in
Section 7 (iv-A) of the Stamp Act as
amended and applicable to the State of U.P.
Article 17(iii) is applicable in cases where
the plaintiff seeks to obtain a declaratory
decree without consequential reliefs and
there is no other provision in the Court
5 All. State of U.P. Vs. Buddha
1533
Fees Act for payment of fee relating to
relief claimed. Since Section 7 (iv-A) of the
Court Fees Act as applicable to the State of
U.P. specifically provides for payment of
Court Fee in a case where the Suit is for
declaration/involving cancellation of an
instrument relating to property which mostsurely a Will Deed relating to bequeathing
of property is all about, the said Section
would squarely be applicable. It is apparent
that the petitioners/plaintiff had sought the
relief of cancellation/declaration of Will as
null
and
void
alongwith
relief
of
prohibitory injunction as a consequential
relief. The Will Deed related to movable
and immovable properties of the Testator
and therefore, the Suit had to be valued
only on the face value of such a Will till it
was declared void by the Court, and was to
chargeable to Stamp Duty "ad valorem" i.e.
awarding to the value of the property which
has been dealt with in the Will or the
instrument bequeathing property.

16. The Order dated 04.04.2022 is set
aside, the matter is remitted to the trial
court to decide afresh, both Issues No. 3
and 4 in the Suit, after giving opportunity
to both the parties to lead evidence. Since
the defendant to the Suit has already filed a
list of properties, movable and immovable
of the testator, the plaintiff is granted four
weeks time to file his list of property,
which according to him are involved in the
Will prayed by him to be declared void.

17. Accordingly, this petition is
allowed.

18. Let such issues to be decided by
the Trial Court within a period of three
months from the date a copy of this order is
produced before it.
----------
(2022)05ILR A1533
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.05.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE BRIJ RAJ SINGH, J.

Capital Cases No. 2 of 2020
connected with
Jail Appeal No. 364 of 2020

State of U.P. ...Appellant
Versus
Buddha ...Respondent

Counsel for the Appellant:
Govt. Advocate

Counsel for the Respondent:

A. Criminal Law - Indian Penal Code, 1860
- Sections 302/34, 323/34 & 452/34 -
Arm Act, 1878 - Section 4/25 - Conviction
under. Imposition of death penalty. Committed
double murder and attempted to commit murder
of one Shivangi. Convicted and sentenced to
death by a trial Court for committing double
murder in a cruel and diabolic manner. Case
does not fall in the rarest of rare cases and in
view of mitigating circumstances death penalty
commuted to life term.

B. Criminal Law - Indian Penal Code, 1860
- Section 34 - To attract the applicability of
Section 34, it must be proved that there existed
a common intention before a person can be
convicted vicariously for the criminal act of the
other. The ultimate act should be done on
furtherance of the common intention. Thus an
overt act is not a requirement of law.
Capital case dismissed and Jail Appeal
partly allowed. (E-12)

List of Cases cited:-

1. Bachan Singh Vs St. of Pun. AIR 1980 SC 898

2. Machhi Singh & ors. Vs St. of Pun. (1983)
SCC 470