Delhi High Court – Orders
Neelam Sharma & Anr vs Ms. Shruti Chopra & Ors on 24 March, 2026
$~46
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 300/2025 & I.A. 7704/2026
NEELAM SHARMA & ANR. .....Plaintiffs
Through: Mr. D.V. Khatri and Mr. Harshad
Gupta, Advocates
Mob: 9312430140
Email: [email protected]
versus
MS. SHRUTI CHOPRA & ORS. .....Defendants
Through: Mr. Gaurav Mishra, Advocate
(through VC)
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
ORDER
% 24.03.2026
I.A. 7704/2026
1. The present application has been filed on behalf of the plaintiffs
seeking recall of the order dated 11th March, 2026, passed by this Court.
2. Learned counsel appearing for the plaintiffs submits that the plaintiffs
are claiming 1/4th each in the suit property, and that the Court Fees has been
paid on the basis of the shares claimed by the plaintiffs.
3. This Court notes that the provision with respect to the Court Fees
payable in suit for partition is governed by Section 7(iv)(b) of the Court Fees
Act, 1870, which clearly records that in cases where a party seeks to enforce
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right to share in any property on the ground that it is joint family property,
and if the property claimed, is not in possession of the party in question,
then Court Fees has to be paid according to the amount at which the relief
sought is valued in the plaint or memorandum of appeal.
4. This Court notes that vide order dated 08th July, 2024 in CS(OS)
2173/2015 titled as “Bakshish Singh Chandhok & Anr. Versus Bhavjot
Singh Chandhok”, this Court with respect to payment of Court Fees in
partition suit, has held as follows:
“xxx xxx xxx
10. In Tara Chand Gaur (supra), a learned Single Judge of this
Court held that in a Suit for partition, court-fee in terms of Schedule
II, Article 17(vi) of the Court Fees Act, 1870 is payable inasmuch as
every co-owner is either in actual physical possession of the co-
owned property or, in law, has to be taken in deemed possession or
constructive possession of the co-owned property. The Court further
held that where the plaintiff is not in possession, physical or
constructive, of the Suit Property, the court fee is payable for the
share claimed by the plaintiff. The Court observed as under:
“6. So far as the third aspect of the courtfee having not been
paid is concerned because the appellant/plaintiff has only
affixed a court fee of Rs. 20/-, once again, the trial court has
erred in holding that since the appellant/plaintiff had valued the
suit at Rs. 1 crore, and he was not in possession of the suit
property, therefore, the appellant/plaintiff was liable to pay
court-fee on his 1/3rd share. In law, when a partition is sought
by a co-owner, court-fee which is payable is a fixed court-fee
in terms of Schedule II, Article 17 (vi), of the Court-fees Act,
1870 inasmuch as every co-owner is either in actual physical
possession of whole or part of the property or in law has to be
taken in deemed possession or constructive possession of the
co-owned property. If a defendant is a co-owner who is in
actual physical possession of the complete property, even then,
the possession of one or more such co-owners who are
defendants in possession, the possession is for and on behalf of
all co-owners including the plaintiff(s), and whether there exists
exclusive possession of the respondents/defendants and the same
acts as an ouster of the plaintiff(s) is a question of fact, and onlyPage 2 of 7
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when this question of fact is proved by the
respondents/defendants by leading evidence, it can be held that
the appellant/plaintiff was not in possession, physical or
constructive, of the suit property, so that courtfee is payable for
the 1/3rd share as claimed by the appellant/plaintiff. In fact, this
issue of court-fee is very much inter-linked with the issue of
limitation because the appellant/plaintiff is not in possession,
and both are factual issues which will have to be proved by the
respondents/defendants that the appellant/plaintiff was not in
physical possession of the suit property and ouster has been
proved against the appellant/plaintiff by respondents/defendants
after leading evidence.”
11. In Geeta Tandon (supra), this Court, considering the issue of
court fees payable on a suit for partition, has observed as under:
“45. It was held by this court in Prakash Wati vs Dayawanti,
(1990) 42 DLT 421, that it is a settled principle of law that in
the case of co-owners, the possession of one is in law the
possession of all unless ouster or exclusion is proved. By relying
on the judgement in Jagdish Pershad v. Joti Pershad, 1974
SCC OnLine Del 214, this court in Prakash Wati (Supra)
reiterated that, when the plaintiff asserts shared possession of
the property for which partition is requested, whether actual or
constructive, the plaintiff is only required to pay a fixed court
charge in accordance with Article 17(vi) Schedule II of the
Court Fees Act, 1870. Thus, ad volarem court fee under
Section 7(iv) (b) of the Court Fees Act, 1870 can be applied
only when the plaintiff has been ousted from its enjoyment of
the suit property and seeks restoration of the joint possession
by way of a suit as was held in Asa Ram Vs. Jagan Nath and
others, AIR 1934 Lahore 563.
46. In Jagdish Pershad & ors vs Jyoti Pershad & ors, ILR 1975
Delhi 841, this court held that when a joint owner seeks
partition of the property, they merely seek a change in the mode
of enjoyment of the said property, where a mere denial of right
or title by the other co sharers does not amount to an ouster of
the plaintiff.
47. To appreciate implication of denial of title in a suit property
and the necessary ingredients of ouster, a reference may be
made to the judgement of the Apex court in Nagabhushanammal
(Dead) vs C.Chandikeswaralingam, (2016) SCC 434, which
placed reliance on judgement in Vidya Devi vs Prem Prakash,
(1995) 4 SCC 496 wherein the meaning and connotation of the
term ‘ouster’ was expounded as follows:
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“28. ‘Ouster’ does not mean actual driving out of the co-
sharer from the property. It will, however, not be complete
unless it is coupled with all other ingredients required to
constitute adverse possession. Broadly speaking, three
elements are necessary for establishing the plea of ouster
in the case of co-owner. They are (i) declaration of hostile
animus; (ii) long and uninterrupted possession of the
person pleading ouster; and (iii) exercise of right of
exclusive ownership openly and to the knowledge of the
other co-owner. Thus, a co-owner, can under law, claim
title by adverse possession against another co-owner who
can, of course, file appropriate suit including suit for joint
possession within time prescribed by law.”
48. In the case of Nisheet Bhalla Vs. Malind Raj Bhalla, AIR
1997 Delhi 60, as well Coordinate Bench of this Court had held
that in order to decide the question of court fee, averments made
in the plaint are to be seen and the decision cannot be
influenced by the pleas taken in the written statement or by the
final decision of suit on merits. It is only when the ouster or the
exclusion from the property is proved that the question of ad
valorem Court Fee may arise. So long as there is joint
possession in law, it is not necessary that the plaintiff should be
in actual possession in whole or part of the property.
49. This court in Krishna Gupta And Anr. vs M/S Rajinder Nath
& Co Huf And Ors, 2013 SCC OnLine Del 547 held that while
ascertaining if the plaintiff had been ousted from the suit
property, the same must be indisputably admitted by the plaintiff
in their plaint. Specific sentences and paragraphs in the plaint
cannot be read in abstract while determining an ouster
especially when the plaintiff has categorically stated that they
are in joint and constructive possession of the suit property.
Thus, once an express plea of constructive possession has been
made, the onus to prove ouster for the payment of ad volarem
court fee shifts on to the defendants.
50. From a combined reading of the aforesaid judgements, it is
clear that a party claiming partition of the property is liable to
pay ad volarem court fee only in those circumstances where
‘ouster’, pleaded as a defence by defendants for the purpose of
making out a case of adverse possession, is established.”
(Emphasis supplied)
12. In Anu (supra), this Court had explained the above position in
law, by observing as under:
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“5. Section 8 of the Suits Valuation Act, 1887 provides that
where other than those referred to in the Court-fees Act, 1870
Section 7, paragraph v, vi and ix, and paragraph x, clause (d),
Court-fees are payable ad valorem under the Court-fees Act,
1870, the value as determinable for the computation of court-
fees and the value for purposes of jurisdiction shall be the same.
Section 9 of the above-referred Act provides that when the
subject-matter of suits of any class, other than suits mentioned
in the Court-fees Act, 1870, Section 7, paragraph v and vi, and
paragraph x, clause (d) is such that in the opinion of the High
Court it does not admit of being satisfactorily valued, the High
Court may with the previous sanction of the State Government,
direct that suits of that class shall, for the purposes of the Court-
fees Act, 1870, and of this Act and any other enactment for the
time being in force, be treated as if their subject-matter were of
such value as the High Court thinks fit to specify in this behalf.
In exercise of powers conferred by Section 9 of Suits
Valuation Act, Punjab High Court made rules which are
applicable to Delhi.
Suits for partition of property–
Court-fee–(a) as determined by the Courtfees Act, 1870
Value–(b) For the purpose of the Suit Valuation Act, 1887, and
the Punjab Court Act, 1918 the value of the whole of the
property as determined by Sections 3, 8 and 9 of the Suits
Valuation Act, 1887.
It would thus be seen that in view of the rules framed by
Punjab High Court under Section 9 of Suits Valuation Act,
which admittedly are applicable to Delhi, there can be separate
valuations for the purpose of Court fee and jurisdiction. The
valuation for the purpose of jurisdiction has to be the value of
the whole of the properties subject matter of partition, whereas
valuation for the purpose of Court fee would be such as is
provided by the Court-fees Act.
Section 7(iv)(b) of Court Fees Act, provides that in a suit to
enforce the right to share in any property on the ground that it
is a joint family property, the amount of fee payable under
Court-fee Act, shall be computed according to the amount at
which the relief sought is valued in the plaint or memorandum
of appeal. It further provides that in all such suits the plaintiff
shall state the amount at which he values the relief sought by
him. Article 17(vi) of Schedule II of Court-fees Act provides for
payment of a fixed Court fee in a suit where it is not possible to
estimate at a money value the subject matter in dispute, and
which is not otherwise provided for by this Act.
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6. After examining the decision of Supreme Court in S.Rm. Ar.
S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan
Chettiar AIR 1958 SC 245, Neelavathi & Ors. v. N. Natarajan
& Ors. AIR 1980 SC 691, Jagannath Amin v. Seetharama
(dead) by LRs & Ors. 2007(1) SCC 674 and Commercial
Aviation and Travel Co. v. Vimla Panna Lal AIR 1988 SC 1636
this Court in CS(OS) No. 2642/2008 and IA No. 10367/2010
decided on 4th March, 2011 summarized the legal position in
this regard as under:
(ii) If the plaintiff claims to be in joint possession of the suit
property, he has to pay a fixed Court fee in terms of Article
17(vi) of Court-fees Act.
(iii) If the averments made in the plaint show that the plaintiff
has been completely ousted from possession and is not in
possession of any part of the suit property, he is required to
claim possession and also pay ad valorem Court fee on the
market value of his share in the suit property.”
13. From the above, it is apparent that in a Suit for seeking partition
of a co-owned property, the possession of one of the co-owners is
deemed to be the possession of the remaining co-owners as well and
the court fee payable is in accordance with Schedule II, Article 17(vi)
of the Court Fee Act. However, where the defendant proves ouster of
the plaintiff from the possession of the property, Court Fee payable is
in accordance with Section 7(iv)(b) of the Court Fee Act.
14. In the present case, the averments of the plaint have been
reproduced hereinabove. They clearly show that the plaintiffs
themselves have asserted and admitted ouster from the possession of
the Suit Property. They have claimed that the defendant has not only
changed the locks at the entrance of the Suit Property but is also
forcing the plaintiffs to stay at a hotel whenever they visit Delhi. The
plaintiffs, therefore, on their own assertions, are not in constructive or
actual possession of the Suit Property. The defendant is not to prove
the same any further. As the plaintiffs themselves admit to their ouster
from the possession of the Suit Property, the court fee payable shall be
ad valorem in accordance with Section 7(iv)(b) of the Court Fees Act,
1870 and not Article 17(vi) of the Schedule II of the Act.
15. In B.R. Patil (supra), the Supreme Court has placed reliance on,
inter alia, the earlier judgment in P. Lakshmi Reddy v. L. Lakshmi
Reddy, AIR 1957 SC 314, wherein it had been held that the possession
of one co-heir is considered as possession of all the co-heirs.
However, the said judgment cannot come to the aid of the plaintiffs in
the present case. The plaintiffs, as noted hereinabove, have themselves
admitted to have been ousted from the possession of the Suit Property
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by the defendant. Therefore, the plaintiffs shall pay the Court Fees in
accordance with Section 7(vi)(b) of the Act.
xxx xxx xxx”
(Emphasis Supplied)
5. It is to be noted that the Court Fees already stands deposited by the
plaintiffs on the basis of the share in the property claimed by them from the
joint family property.
6. Accordingly, the order dated 11th March, 2026 is recalled.
7. With the aforesaid directions, the present application is disposed of.
MINI PUSHKARNA, J
MARCH 24, 2026
akPage 7 of 7
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