Under what circumstances suit for possession is maintainable without claiming declaration.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4816 OF 2016

Muddasani Venkata Narsaiah Vs Muddasani Sarojana 

Dated:May 5, 2016.
Arun Mishra, J.
Citation:AIR 2016 SC 2250

 

 In the aforesaid background of facts, we come to the question whether it was necessary to seek relief or declaration of title. In our opinion, the plaintiff has filed the
suit for possession on the strength for title and not only on the basis of prior possession.
It was not a summary suit for ejectment filed under Section 6 of the Specific Relief Act,
1963. Thus, plaintiff could succeed in suit for possession on the strength of the title.
The issue had been framed on the question of title of the plaintiff as well as on the question of adoption of defendant no.3. On the basis of title claimed in the suit, both the
parties have adduced their evidence in support of their respective cases. The main plea
of defendant no. 3 that she was an adopted daughter of Yashoda has not been found to be
established by the trial Court, the first Appellate Court or by the High Court. Thus, in
our opinion, there was no serious cloud on the title of the plaintiff so as to force him toseek the relief for declaration of title in the instant case which was in fact based on the
strength of the sale deed executed by Buchamma, who was the sole surviving heir of
Balaiah as such succeeded to the property and had the right to execute the sale deed in
favour of the plaintiff.
13. We are fortified in our aforesaid conclusion by a decision in Kurella Naga Druva
Yudaya Bhaskara Rao v. Galla Jani Kamma (2008) 15 SCC 150, wherein this Court has
examined the question of maintainability of suit for possession without prayer for
declaration of title. This Court has referred to its earlier decision in Anathula Sudhakar
v. P. Buchi Reddy (2008) 4 SCC 594, wherein the plaintiff had purchased the suit land
under registered sale deed dated 10.4.1957 and the defendant did not claim the title with
reference to any document but claimed to have perfected title by adverse possession. It
was held by this Court that the said plea did not prima facie put any cloud over the
plaintiff’s title calling him to file suit for declaration of title. Unless there is serious
cloud over the title of the plaintiff there is no need to file suit for declaration of title. The
suit for possession was maintainable. This Court laid down as follows:
“16. The plaintiff had purchased the suit land under registered sale
deed dated 10.4.1957. Defendant did not claim title with reference to any
document but claimed to have perfected title by adverse possession. A mere
claim by the defendant that he had perfected his title by adverse possession,
does not mean that a cloud is raised over plaintiff's title and that the
plaintiff who is the owner, should file a suit for declaration of title. Unless
the defendant raises a serious cloud over the title of the plaintiff, there is noneed to file a suit for declaration. The plaintiff had title and she only wanted
possession and therefore a suit for possession was maintainable. We are
fortified in this view by the following observations of this Court in
Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594:
“14. We may however clarify that a prayer for declaration will
be necessary only if the denial of title by the defendant or challenge
to plaintiff's title raises a cloud on the title of plaintiff to the property.
A cloud is said to raise over a person's title, when some apparent
defect in his title to a property, or when some prima facie right of a
third party over it, is made out or shown. An action for declaration, isthe remedy to remove the cloud on the title to the property. On the
other hand, where the plaintiff has clear title supported by
documents, if a trespasser without any claim to title or an interloper
without any apparent title, merely denies the plaintiff's title, it does
not amount to raising a cloud over the title of the plaintiff and it will
not be necessary for the plaintiff to sue for declaration. ...."

Additional Properties can be added in Final Decree Petition- Subject to condiiton that non inclusion of total properties were raised as an issue in the suit

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7008 OF 2008
(Arising out of SLP (C) No.959 of 2008)
S. Satnam Singh & Ors. ...
Appellants
Versus
Surender Kaur & Anr. ... Respondents

 

16. Before adverting to the rival contentions of the parties, it must be
kept in mind the principle that ordinarily a party should not be prejudiced by an act of court. It must also furthermore be borne in mind that in a partition suit where both the parties want partition, a defendant may also be held to be a plaintiff. Ordinarily, a suit for partial partition may not be entertained. When the parties have brought on records by way of pleadings and/or other material that apart from the property mentioned by the plaintiff in his plaint, there are other properties which could be a subject matter of a partition, the
court would be entitled to pass a decree even in relation thereto .

18. While dealing with the application under Section 21 of the
Arbitration Act, 1940 where one of the questions was as to whether an
immoveable property situated in Burma could be a subject matter of

reference, in Phoolchand & Anr. v. Gopal Lal [(1967) 3 SCR 153], it was held :

“7. We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented.
We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and
specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary
decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that
dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second
preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility.

The said principle was reiterated in Mool Chand & Ors. v. Dy.
Director, Consolidation & Ors. [AIR 1995 SC 2493], stating :
“The definition of ‘decree’ contained in Section 2 (2) read with the provisions contained in Order 20, Rule 18(2) as also Order 26, Rule 14 of the Code indicate that a preliminary decree has first to be
passed in a partition suit and thereafter a final decree is passed for actual separation of shares in accordance with the proceedings held under Order 26. There are, thus, two stages in a suit for partition. The first stage is reached when the preliminary decree is passed under which the rights of the parties in the property in question are determined and declared. The second stage is the stage when a final decree is passed which concludes the proceedings before the Court and
the suit is treated to have come to an end for all practical purposes.”

In Final Decree Proceddings Or.22 , rule 3 and 4 not applies and Or.22 ,Rule 10 applies - no abatement - when the defendant died after passing of the preliminary decree - it is not necessary to bring his legal heirs by filing petition- add them in the final decree petition as one of the respondents under or.22, rule 10 C.P.C.as is enough

 

THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO          

CRP.No.4557 of 2007

13-11-2013

Ausali Siddiramulu (Died per LR's) and others...Petitioners/  Petitioners

Ausali Dubbaiah, S/o.Sheshaiah (Died per LR.s)and others

...Respondents/Respondents

<GIST:

>HEAD NOTE:  

Counsel for the Petitioner/Petitioners  :Sri A. Rajamalla Reddy

Counsel for the Respondents/Respondents:Sri C.R. Pratap Reddy

                                         Sri K. Goverdhan Reddy

?Cases referred:

1.      AIR 1983 SC 1202

2.      (2009) 9 SCC 689

3.      1991 (3) ALT 513

4.      AIR 1924 P.C. 198

5.      AIR 1962 Pat. 178

6.      1979 (1) APLJ 54 (NRC)

7.      2003 (3) ALD 585

The Court made the following :  [order follows]

THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO          

CRP.No.4557 of 2007

ORAL ORDER :  

1.      This Revision is filed challenging the order dt.29.12.2005 in IA.No.493 of

2003 in OS.No.2 of 1984 on the file of the Court of the Sr. Civil Judge, Medak,

Medak District.

2.  The petitioners are the legal representatives of one Siddiramulu, who was

the plaintiff in the above suit.  He filed the said suit for partition of the

plaint schedule properties and for recovery of possession of his half share

therein.  Siddiramulu died pending suit and his wife and children were brought

on record. A preliminary decree of partition was passed in the suit on

28.09.1984.

3. Challenging the said decree, Respondent Nos.1 to 6 herein filed AS.No.25 of

1984 before the District Judge, Medak.  The said appeal was dismissed on

13.11.1987.

4.  The 3rd respondent herein filed SA.No.174 of 1998 in this Court challenging

the same.  On 18.09.2000 the said Second Appeal was also dismissed.

5. It appears that one Reddi Lachaiah, who is the 4th respondent/4th defendant

in the suit, died in the year 2001 leaving behind respondent Nos.17 and 18 as

his legal heirs.  Likewise, Raja Timmaiah, the 5th respondent/5th defendant also

died in 1999 leaving behind the 16th respondent as his legal heir.  The 6th

respondent/ 6th defendant in the suit, also died leaving behind the 14th

respondent as his legal heir.

6. The petitioners filed I.A.493/2003 under Order XX Rule 18 CPC on 07.08.2003

for appointment of a Commissioner for submitting a report so that a final decree

can be passed in the suit.  

Since the respondent no.s 4-6 had died and their

legal representatives would also have to be given notice in the final decree

petition I.A.493/2003, they also sought for condonation of delay of 1053 days in

bringing their legal representatives on record, to set aside the abatement

caused by their death and to bring them on record as legal representatives of

the deceased respondent no.s 4-6/defendant no.s 4-6.  

In the array of parties, all the legal representatives of respondents 4-6 were also

indicated.

7. The 3rd respondent filed a counter opposing the said application contending

that the application is vague and vexatious and there is no specific prayer in

the petition; 

that specific dates of the death of the deceased were not given;

that the petitioners ought to explain the delay in respect of the each of the

deceased; they also ought to file separate petitions in respect of each of the

respondent no.s4-6, for condonation of delay in seeking to set aside abatement,

to set aside abatement and to bring on record the legal representatives. 

It is

also stated that pending Second Appeal before the High Court, the death of these

persons was not reported, and therefore, the 3rd respondent could not take steps

to bring them on record in the Second Appeal which she had filed.

8. By order dt.29.12.2005, the Court below dismissed the said I.A.

 In the said

order, the trial court noted that the petitioner did not add the legal

representatives of the deceased in SA.No.174 of 1998 which had been disposed of

on 18.09.2000; that the petitioners did not give even the date of the deaths of

the deceased respondents; the delay is not properly explained; and there were

latches on the part of the petitioners.

9. Aggrieved thereby, the present Revision is filed.

10. Heard the counsel for petitioners and the counsel for 3rd respondent.

11.  Respondent Nos.1, 2, 4 to 6 have died.  Respondent Nos.7, 11 and 14 refused

to receive the notices sent by Court and therefore, they are deemed to be

served.  Respondent Nos.8 to 10 and 17 were served but none appears on their

behalf.

12. The counsel for the petitioners contended that the reasoning of the Trial

Court is perverse; when SA.No.174 of 1998 was filed in this court by 3rd

respondent/3rd defendant, the trial court ought not have blamed the petitioners

for not bringing to the notice of this Court, the death of these persons or for

not bringing their legal representatives on record in the Second Appeal; that

under Order XXII Rule 10A of CPC, it was incumbent on the counsel who appeared

for the deceased parties in the suit to give information about the date of death

and the details of legal representatives of the deceased defendants to the

petitioners; 

that the petitioners were not aware of these details and therefore,

they could not mention the specific dates of death of these individuals. 

 It is

also stated that since there is no time limit to file an application to pass a

final decree in a suit for partition, in the application filed to pass a final

decree, the petitioners are entitled to state that these persons have died and

their legal representatives be brought on record by condoning the delay, if any,

in filing applications to set aside the abatement.  

He also contended that all

procedure is a hand-maid of justice and the mere fact that separate applications

in respect of each of the deceased respondents are not filed, it is not open to

the trial court to dismiss the application for passing final decree under under

Order XX Rule 18 CPC.

13. On the other hand, the counsel for 3rd respondent supported the decision of

the trial court.  He contended that without the dates of death of the deceased

respondents being mentioned, the I.A 493/2003 cannot be entertained.

14. I have noted the submissions of the parties.

15. It is not disputed that the SA.No.174 of 1998 is filed by

3rd respondent in this Court and it was dismissed on 18.09.2000.  When the 3rd

respondent/3rd defendant had filed SA.No.174 of 1998 in this Court , and the

petitioners had not filed it,  the trial court cannot blame the petitioners for

not taking steps to bring on record the legal representatives of the deceased

respondents in that Second Appeal.

16. The Court below also mentioned that the dates of death of the deceased were

not given by the petitioners.  

When parties to a suit die, under Order XXII Rule

10A of CPC, it is incumbent on the counsel appearing for that party to furnish

details of the date of death and the details of the legal representatives along

with their addresses to the plaintiff in the suit (See Gangadhar v.Rajkumar1).

Admittedly, this has not been done.  When none of the respondents furnished the

date of death to the petitioners, to expect the petitioners to give the exact

date of death of the respondent Nos.4, 5 and 6 is perverse. A party cannot be

compelled to give information which he did not know. So this finding of the

trial court also cannot be sustained.

17. Once a preliminary decree is passed, the shares of the parties to the suit

are determined.  What remains to be done is the division of property by metes

and bounds.  As per law, admittedly, there is no time limit fixed for filing an

application to pass a final decree in a suit for partition (See Shub Karan Bubna

v. Sita Saran Bubna2).  Therefore, the mere fact that the application for final

decree is filed in 2003 cannot be held against the petitioners.

18.   It is pertinent to note that the death of the above parties occurred after

the passing of the preliminary decree.  The question is whether there is any

abatement of the suit on account of death of a party to the suit after passing

of the preliminary decree but before passing of final decree.

19.  This Court in S. Mohan Reddy v. P. Chinnaswamy3 held : 

"3.  It is well-established proposition of law that a suit cannot be dismissed

on ground of abatement after a preliminary decree was passed for thereby rights

are accrued to one party and liabilities are incurred by the other : vide

Lachiminarayan vs. Balmadund4.  It was observed therein:

         'After a decree has once been made in a suit, the suit cannot be

dismissed unless the decree is reversed on appeal.  The parties have on the

making of the decree acquired rights or incurred liabilities which are fixed

unless or until the decree is varied or set aside.'

        After a decree, any party can apply to have it enforced.  As such, the

suit does not abate under Or.22 Rules 1, 3 and 4 CPC after a preliminary decree

is passed.  But, it is equally a general principle of law that a decree cannot

be passed in favour of or against a dead person."

... ... ...

6.      As I already observed, a suit cannot be dismissed except on appeal or by

review after a preliminary decree is passed.  It follows that there cannot be

abatement of the suit even if the L.Rs. of the deceased party are not brought on

record during the final decree proceedings.  But, even a final decree cannot be

passed for or against a dead person.  So, it is necessary to bring on record the

L.Rs. of the deceased before a final decree is passed.  It has to be seen as to

what provision is applicable when O.22 Rules 1, 3 and 4 are not applicable in

case of death of parties during the final decree proceedings.

7.      Order 22 Rule 10 CPC lays down that in cases of an assignment, creation or

devolution of any interest other than the cases referred to in remaining Rules

of or.22, the suit may by leave of the Court, be continued by or against the

person to or upon whom such interest has come or devolved.  When Or.22 Rules 3

or 4 is not applicable in cases of death during the final decree proceedings,

one has to invoke Or.22 Rule 10 CPC to bring the L.Rs. on record.  Ramsewak vs.

Mt. Deorathi5 lends support to the said proposition." (emphasis supplied)

20. In T. Mangaraju v. K. Ganamma6, this Court held :

"Once preliminary decree is passed it cannot be said that the cause of action

dies along with the person nor dies it require that the LRs. should claim the

cause of action by being brought on record within the period of limitation

prescribed.  In other words on account of the passing of the preliminary decree

the right stands recognised by the Court.  All that is required is that the

final decree proceedings should be taken up at the instance of the party

claiming and in that view there is no question of any abatement nor does it

require that the abatement be set aside.  The provision of Order 22 Rule 3 and 4

does not apply to a case where the holders dies after passing a preliminary

decree."(emphasis supplied)

21. In Valluri Sambasivarao v. Motamari Veeraiah Gupta7, this Court reiterated :

"22.    ... ... ... it is clear that by passing of preliminary decree, the rights

of the parties stand recognized and determined by the Court and the only thing

that is left is passing of the final decree.  

Therefore after passing of a

preliminary decree if the plaintiff dies, since no final decree can be passed on

a dead person, it is essential to permit his legal representatives to come on

record.  

Hence, after such determination and recognition of rights, if the

plaintiff dies, there is no question of any abatement and the suit cannot be

dismissed on the ground of abatement, after passing of a preliminary decree,

except in an appeal or in a revision." (emphasis supplied)

22. In view of the above legal position, I am of the opinion that Order XXII

Rule 3 and 4 have no application to the present case as preliminary decree in

the suit was passed in 1984 and the death of respondent Nos.4, 5 and 6 took

place subsequently in 1997, 1999 and 2001, respectively.  Thus there can be no

abatement of the suit on account of the death of the defendants 4-6 after

passing of the preliminary decree. So there was no necessity for the petitioners

to file petitions for condonation of delay in seeking to set aside abatement and

to set aside abatement. So the order of the court below holding that they should

have filed such applications and explained day to day delay in respect of each

of the deceased defendants is contrary to law and unsustainable.

23. The purpose of filing a final decree petition is to ensure that a

Commissioner is appointed to divide the property by metes and bounds and to

determine profits, if any, awarded in the preliminary decree. The petitioners

intended that all the affected parties be informed of the final decree

proceedings so that they may not suffer and the final decree is not passed

behind their back.  Admittedly, all the legal representatives of the deceased

respondents 4-6 were shown as respondents in the final decree petition IA.No.493

of 2003. In my opinion, it would merely suffice if they impleaded the legal

representatives of the deceased respondents 4-6 in it, which they did. No

exception can be taken to this.

24. It is most unfortunate that the trial court ignored the settled legal

position and dismissed the I.A 493/2003 for passing final decree on untenable

grounds and in a perverse manner. Such orders are likely to cause the parties to

lose faith in the institution of Judiciary itself.

25. Even the conduct of the 3rd respondent is to be deprecated. Admittedly she

is not the legal heir of any of the deceased respondents and is not prejudiced

in any manner, if the petitions for condonation of delay in filing the

applications to set aside abatement and to set aside the abatement (assuming for

the sake of argument that as per law they should be filed), are not filed by

petitioners. By raising these untenable technical pleas she has managed to enjoy

the plaint schedule properties from 1984 till this day.

26.    Therefore, the impugned order dt.29.12.2005 in IA.No.493 of 2003 in

OS.No.02 of 1984 passed by the Court of Senior Civil Judge, Medak, Medak 

District is set aside.  IA.No.493 of 2003 is restored to the file of the Sr.

Civil Judge, Medak.  The said court shall issue notices to all the respondents

and take steps to do the needful to pass a final decree in the suit.  The Civil

Revision Petition No.4557 of 2007 is allowed with costs of Rs.5000/- to be paid

by 3rd respondent to petitioners.

27. Miscellaneous applications pending, if any, shall stand closed.

___________________________________    

JUSTICE M.S. RAMACHANDRA RAO        

Date :13-11-2013

Visits by the Hon'ble Judges of Supreme Court and High Courts to the Districts either on personal or official duty -Certain Instructions

 

Distinctive features in between main and ancillary reliefs explained

 

Andhra High Court

V. Rajeshwar Rao vs N. Yadagiri Reddy And Others on 11 July, 2000

Equivalent citations: 2000 (5) ALD 102, 2000 (4) ALT 366

Bench: B P Rao

ORDER

1. This revision at the instance of the plaintiff is filed against the orders calling upon him to pay Court fee under Section 24 of the Andhra Pradesh Court Fees and Suits Valuation Act, 1956 (for short "the Act') by filing the market value certificate of the properties in view of the subsequent amendments adding the prayers for recovery of possession and mandatory injunction to demolish the constructions made. Initially, the petitioner filed the suit in OS No.48 of 1990 on 29-1-1990 seeking perpetual injunction against the respondents herein from interfering with his possession over the suit land. Pending the suit, the petitioner sought interim injunction in IANo.102 of 1990 which was dismissed after hearing both the sides. However, the appeal filed by the petitioner was allowed in CMA No.27 of 1990 on 10-4-1991 granting injunction as sought for. These orders were confirmed by this Court in CRP No.2007 of 1991 by orders dated 2-9-1993. In another parallel suit in OS No.64 of 1987, on the file of the Principal Subordinate Judge, Ranga Reddy District, the petitioner also obtained an order for police aid in IANo.58 of 1990. Later on in the same suit, on the appointment of a Commissioner as per orders in IA No.57 of 1990, a report was filed on 31-8-1996 which is to the effect that the respondents herein have made constructions and built a complex. The case of the petitioner was that inspite of the injunction order, the constructions were made and accordingly the petitioner had moved an application in IA No.3371 of 1998 seeking amendment of the plaint by adding two prayers viz., for recovery of possession of second schedule and for mandatory injunction to demolish the constructions, which was allowed as per orders dated 17-11-1998. As a consequence to this amendment and addition of the two prayers, the Court below directed the petitioner to pay the Court fee in accordance with Section 24 of the Act by filing the necessary market value certificates of the properties against which the reliefs were claimed.

2. Sri Venkata Raghu Ramulu, Counsel appearing for the petitioner, contended that the suit as initially filed is one of injunction and it is only due to the subsequent acts of the respondents herein in making constructions contrary to the injunction orders in the said suit, it necessitated for addition of the prayers of possession and mandatory injunction and, therefore, these prayers which are added subsequently are only ancillary and incidental reliefs but not the main relief and, therefore, under Section 6 of the Act, the Court fee having already been paid for the main relief of permanent injuction, there is no necessity to pay any Court fee for the added reliefs.

3. Sri K, Mahipcahy Rao, Counsel appearing for the respondents, contended that admittedly the suit was one for injunction and later on substantive reliefs of possession and mandatory injunction were added and, therefore, the initial relief of injunction transforms into a consequential relief to the reliefs which have been added and the plaintiff has to pay the Court fee on the main reliefs as added.

4. In this view of the matter, the question which falls for consideration in this revision is: consequent to the addition of prayers of possession and mandatory injunction in a suit for bare injunction, which of the reliefs partakes of the character of the main relief and whether it attracts any payment of additional Court fee?

5. Admittedly, the suit was filed initially for perpetual injunction against the respondents and pending the suit, the petitioner had ultimately got interim injunction in his favour and during this interregnum and in violaton of the said injunction order, the petitioner alleges, the respondents have encroached upon the suit land and made substantial construction even though there was police aid in another suit. On the appointment of the Commissioner and the report filed by him, it was evident that constructions have already come up and ultimately the petitioner had to seek the amendment of the plaint in this suit by adding the reliefs of possession and mandatory injunction.

6. In respect of a suit for injunction, the provisions of Section 26 of the Act prescribe the payment of the Court fee in its three different clauses which include the situations where title to the property is denied and also other cases. Normally, in these suits, the Court fee has to be paid on the one half of the market value of the property under sub-clause (a) and in other cases, on the amounts on which the reliefs were sought in the plaint as per clause (6) therein. Normally, in suits for injunction, the valuation is the discretion of the plaintiff without there being any gross under valuation. So far as multifarious suits are concerned, Section 6 of the Act governs the field, which reads as under:

"6. Multifarious suits :--(1) In any suit in which separate and distinct reliefs based on the same cause of action are sought, the plaint shall be chargeable with a fee on the aggregate value of the reliefs :

Provided that if a relief sought is only ancillary to the main relief, the plaint shall be chargeable only on the value of the main relief.

(2) Where more reliefs than one based on the same cause of action are sought in the alternative in any suit, the plaint shall be chargeable with the highest of the fees leviable on the reliefs.

(3)(a) Where a suit is based on two or more distinct and different causes of action and separate reliefs are sought in respect thereof, either alternative or cumulatively, the plaint shall be chargeable with the aggregate amount of fees that would be chargeable on the plaints under this Act if separate suits were instituted in respect of the several causes of action :

Provided that, where the causes of action in respect of reliefs claimed alternatively against the same person arise out of the same transaction, the plaint shall be chargeable only with the highest of fees chargeable on them.

(b) Nothing in this sub-section shall be deemed to affect any power conferred upon a Court by Rule 6 of Order 11 in the First Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908).

(4) The provisions of this section shall apply mutatis mutandis to memorandum of appeals, applications, petitions and written statements.

Explanation :--For the puposes of this section, a suit for possession of immovable property and for mesne profits, the relief shall be deemed to be based on the same cause of action."

7. Thus, the proviso contemplates that the plaint has to be valued on the main relief if the other reliefs are only ancillary to the main relief. Therefore, for applying the said provision, it has to be seen as to which of the reliefs constitute the main and ancillary. The expression "main relief takes in almost every relief for which the suit is solely laid for. However, the expression "ancillary relief has to be read in conjunction with the main relief i.e., it should be aiding or auxiliary to the main relief. An ancillary relief can in a given circumstance be the main relief but not vice versa. In a simpliciter suit for injuction, the relief of injunction comprises the main relief but when a relief which is of a substantial nature viz., possession or declaration is added to it, the relief of injunction which was hitherto the main relief scales down to the position of a consequential relief. There .are ample distinctive features in between main and ancillary reliefs. Apart from being essentially paramount and predominant, the main reliefis a substantial in nature forging on substantive and vested rights. Possessory relief is the basis and any form of injunction - either mandatory or perpetual - springs from it. To see if a relief is subsidiary or main, the real test is to see whether one relief can be granted without the other. Here in this case in view of the very facts alleged, either of the reliefs of injunctions cannot be granted unless the petitioner seeks possession. Therefore, the possessory relief becomes dominant and constitutes as the main. Simply because initially the suit is filed for injunction and the other reliefs of declaration or possession have been added in view of changed circumstances or warranting circumstances on the appearance of the defendant, the relief of injunction does not remain as the main relief making the other reliefs of declaration or possession as ancillary thereto. In fact, in any given case, the reliefs of declaration and possession necessarily constitute the main reliefs and these reliefs would always go with the other incidental reliefs of injunction either perpetual or mandatory depending on the facts of each case. Subsequent addition of any such substantial relief would not make it ancillary to the relief already existing merely because such relief was the initial foundation for the suit. The petitioner-plaintiff having filed the suit initially for injunction and in view of the alleged subsequent acts of encroachment and construction, the reliefs of possession and mandatory injunction were added lateron. These reliefs, even according to the plaintiff, are in fact based on the subsequent cause of action. In these circumstances, it has to be held that the relief of possession constitutes the main relief and any other reliefs of injunction either perpetual or mandatory fall behind the same and become ancillary to the same. Even if the suit is to be treated as a comprehensive one including the reliefs of injunction and possession, apart from basing upon different causes of action, it only calls for payment of the highest Court fee leviable on the reliefs as per Section 6(2) of the Act viz., possessory relief.

8. Accordingly, the lower Court is right in calling upon the plaintiff to pay the Court fee as per Section 24 of the Act on the substantiation of the market value by necessary certificates as contemplated.

9. In view of the aforesaid reasons. I do not find any merits in the revision and it is therefore, dismissed. No costs.