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1978 DIGILAW 232 (MP)

Abbas Ali v. Poonam Chadn

1978-03-17

B.R.DUBE

body1978
Short Note : The respondents to 5 had filed the suit against the appellant and respondents 6 to 9 for rectification of sale-deed and for possession of agricultural lands. It was alleged that the agricultural lands bearing survey Nos. 71, 72 & 73 of village Arnya-Borana of Tahsil Neemuch, were purchased by the appellant and respondent No.9 by a sale-deed dated 28-1-1969 from the respondent No 6 Chhaganbai for a sum of Rs. 6,000. Thereafter, the respondent Nos 1 to 3 had purchased certain lands of village Jeeran and village Arnya-Borana inc1usive of the above mentioned fields for a sum of Rs. 18,000 from respondent No. 6-Chhaganbai by a sale-deed dated 9-7-1968. It was further alleged that due to mistake, the suit lands of village Jeeran were not inc1uded in the sale-deed. The plaintiffs, therefore, filed the suit in which they claimed rectification of the sale-deed dated 9-7-1966 by inclusion of the suit-lands in it and also claimed possession of those lands. With respect to the relief of possession, the plaintiffs paid ad valorem Court-fee on the value determined at 20 times the annual land revenue. So far as the relief of rectification was concerned, the plaintiffs paid the fixed Court-fees of Rs. 30 under Schedule II, Article 17 (vi) of the Court-fees Act on the ground that the said claim was not capable of valuation. 2. Held: Learned counsel for the respondents raised a preliminary objection that the instant appeal was not competent against the impugned order of the lower Court. It max be Doted that the trial Court rejected the plaint under Order 7, rule 11 of the Code of Civil Procedure. Such an order is a decree as defined in sub-section (2) of section 2 of the Civil Procedure Code and therefore it is appealable. That is why, an appeal was filed by respondents 1 to 5 in the lower appellate Court to which no objection was taken by the appellant or the other respondents. The lower appellate Court found that proper Court-fee was paid and hence the trial Court's decree based on the rejection of the plaint was set aside and the case was remanded for decision on merits. The lower appellate Court found that proper Court-fee was paid and hence the trial Court's decree based on the rejection of the plaint was set aside and the case was remanded for decision on merits. The said order of remand would fall under Order 41, rule 23 of the Civil Procedure Code and hence it would be appealable by virtue of the provisions contained in Order 43, rule 1 (U), of the Civil Procedure Code. I, therefore, overrule the preliminary objection raised on behalf of the respondents with respect to the maintainability of the appeal. 3. Now, the question for consideration is whether the Court-fee paid by the plaintiff is proper. According to Schedule II, Article 17 (vi) of the Court-fees Act, fixed Court-fee of Rs. 30 is payable in a suit where it is not possible to estimate at a money value the subject matter in dispute which is not otherwise provided for by this Act. It is not disputed that there is no provision in the Court-fees Act for the valuation of the claim for rectification of a sale-deed. 4. It is true that in case the plaintiffs in the instant case are successful in getting the sale-deed rectified, they would be basing their claim of title on the rectified sale-deed with respect to the suit property, the possession of which they have already claimed by making a valuation for the purposes of jurisdiction and paying the ad valorem Court-fee on that valuation. However, no objective standard can be laid down to value a claim for rectification of a sale-deed. The lower appellate Court, therefore, rightly held that the suit so far as it relates to the relief of rectification of the sale-deed is not capable of any valuation and hence the fixed Court-fee of Rs. 30 paid under Schedule II, Article 17 (vi) of the Court-fees Act was proper. 1963 JLJ 674, distinguished, 42 Cal. WN 614, relied on. Appeal dismissed.