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2011 DIGILAW 1452 (PNJ)

Darshan Singh v. Kulwant Singh

2011-07-28

JASWANT SINGH

body2011
JUDGMENT Mr. Jaswant Singh, J.: - Plaintiff-petitioner has filed the present petition under Article 227 of the Constitution for quashing of the impugned order dated 18.1.2010 (P.4) passed by the learned Civil Judge (Jr. Division), Karnal vide which the application filed by the defendant-respondent No.2 under Order 7 Rule 11 CPC has been allowed and he (plaintiff-petitioner) has been directed to pay the ad valorem court fee. 2. Brief facts giving rise to the case are that the plaintiff-petitioner filed a Civil suit No.497/2009 for declaration to the effect that the sale deed dated 28.6.2006 is illegal, null and void with a consequential relief of permanent injunction restraining defendant No.2 from alienating the suit land in any manner. During the pendency of the suit, defendant-respondent No.2 filed an application dated 17.7.2008 (P.2) under Order 7 Rule 11 CPC for rejection of the plaint or in the alternative to direct the plaintiffpetitioner to pay the appropriate court fee. Upon notice, the same was opposed by filing reply (P.3). After hearing both the sides, the learned Civil Judge while allowing the application vide order dated 18.1.2010 came to the conclusion that the plaintiff-petitioner is liable to affix ad valorem court fee on the value of sale deed dated 28.6.2006 and thus directed to make good the deficiency in court fee within two months from the date of passing of the order, hence the present petition. 3. Learned counsel for the petitioner submits that the learned trial Court has grossly erred while passing the impugned order dated 18.1.2010 as the petitioner had only prayed for a simpliciter declaratory decree regarding his ownership by avoiding the impugned sale deed dated 28.6.2006 being a result of fraud and impersonation and has not claimed any consequential relief of possession and thus he has contended that no ad valorem court fee is required to be affixed on the value of the impugned sale deed. In support of his contentions, learned counsel relies on a judgment of Hon’ble Supreme Court reported as Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., [2010(2) LAW HERALD (SC) 1371 : 2010(2) LAW HERALD (P&H) 1356 (SC)] : JT 2010(3) SC 472. 4. In support of his contentions, learned counsel relies on a judgment of Hon’ble Supreme Court reported as Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors., [2010(2) LAW HERALD (SC) 1371 : 2010(2) LAW HERALD (P&H) 1356 (SC)] : JT 2010(3) SC 472. 4. On the other hand, learned counsel for defendant-respondent No.1 has argued that the learned trial Court has rightly passed the impugned order dated 18.1.2010 while directing the plaintiff-petitioner to pay the ad valorem court fee as he is challenging the sale deed dated 28.6.2006, which was registered for a sale consideration of Rs.4,35,000/-. 5. After hearing learned counsel for the parties and perusing the paper book, this Court does not find any merit in the petition and the same deserves dismissal. 6. A perusal of complete averments made in the plaint (P.1) reveal that the plaintiff-petitioner along with his brother/defendant-respondent No.1 was the owner in possession in equal shares of agricultural land measuring 5 kanal 16 Marla. 6. A perusal of complete averments made in the plaint (P.1) reveal that the plaintiff-petitioner along with his brother/defendant-respondent No.1 was the owner in possession in equal shares of agricultural land measuring 5 kanal 16 Marla. It is further alleged that defendant-respondent No.1 got executed the sale deed dated 28.6.2006 of the abovesaid land including the share of the plaintiff-petitioner also by impersonation in connivance with defendant-respondent No.2 and others and in these circumstances he had prayed for a decree for declaration to the effect that the sale deed dated 28.6.2006 executed in favour of defendant-respondent No.2 is illegal, invalid and not binding upon the rights of the plaintiffpetitioner and he may be declared owner in possession of the land measuring 2 kanal 18 marla described in the head note of the plaint with consequential relief of permanent injunction and the prayer clause reads as under: “It is, therefore, humbly prayed that a Decree for declaration to the effect that the Sale Deed bearing Vasika No.3578/1 dated 28.6.2006 executed in favour of defendant No.2 qua the share of plaintiff and the Mutation, if any, sanctioned thereon, are illegal, null & void ab-initio, nonest, invalid, ineffective, inoperative, in contravention of law and also not binding upon the rights of the plaintiff and the plaintiff may be declared owner in possession of land measuring 2K-18M being ½ share out of land detailed in para No.2 of the plaint above with consequential relief Permanent Injunction restraining the defendant No.2 from alienating the suit land by way of Sale/mortgage/lien/gift/charge etc and also restraining the defendants from dispossessing the plaintiff from the suit land, illegally and forcibly or in any manner, may kindly be passed in favour of the plaintiffs and against the defendants, with costs.” The plaintiff-petitioner had declared in para 9 of the plaint that the value of the suit for the purpose of court fee and jurisdiction is assessed at Rs.200/- and hence a court fee of Rs.25/- has been affixed on the plaint. 7. It is the specific case of the plaintiff-petitioner in para 4 of the plaint that “the Sale Deed bearing Vasika No.3578/1 dated 28.6.2006 was got executed by the defendant No.1 to the extent of share of the plaintiff by producing some one else, who had impersonated the present plaintiff”. 7. It is the specific case of the plaintiff-petitioner in para 4 of the plaint that “the Sale Deed bearing Vasika No.3578/1 dated 28.6.2006 was got executed by the defendant No.1 to the extent of share of the plaintiff by producing some one else, who had impersonated the present plaintiff”. It is further alleged that “The thumb impression on the alleged Sale Deed are not that of the present plaintiff and even the photograph appended on the said Sale Deed is not that of the plaintiff.” When the plaintiff-petitioner himself is alleging that defendant-respondent No.1 had impersonated him while executing the alleged sale deed dated 28.6.2006, then it is imperative for the plaintiff-petitioner to prove that and he has neither thumb marked nor appended his photographs on the sale deed but in fact he had been impersonated by some one else. Without proving these facts, it is inconceivable that how the plaintiff will succeed in his claim? Thus the contention of the petitioner that he is praying the declaratory decree merely by avoiding the impugned sale deed being a result of fraud and impersonation is not acceptable rather he will have to prove his averments by leading cogent evidence in the absence of which it is not possible for the learned trial Court to come to the conclusion that the alleged sale deed is the result of fraud and impersonation. Therefore, it can be safely concluded that the plaintiff-petitioner has challenged the very legality and validity of the sale deed dated 28.6.2006 and without setting aside the same a presumption of truth is attached with the sale deed and that will confer a good title in favour of defendant-respondent No.2. Further the plaintiff-petitioner has prayed that he “may be declared owner in possession of the land measuring 2 kanal 18 marla being ½ shares out of land detailed in para No.2 of the plaint above with consequential relief of permanent injunction” is sufficient to draw an inference that he is seeking a declaration for cancellation of the sale deed along with possession. Therefore, in my view, the learned trial Court has rightly come to the conclusion that the petitioner is required to affix the ad valorem court fee on the sale consideration of Rs.4,35,000/- of the impugned sale deed. 8. Therefore, in my view, the learned trial Court has rightly come to the conclusion that the petitioner is required to affix the ad valorem court fee on the sale consideration of Rs.4,35,000/- of the impugned sale deed. 8. Judgment cited by learned counsel for the plaintiff-petitioner in Suhrid Singh’s case (supra) is not applicable to the facts of the present case as the prayer made in that case was as under: “(i) for a declaration that two houses and certain agricultural lands purchased by his father S. Rajinder Singh were coparcenary properties as they were purchased from the sale proceeds of ancestral properties and that he was entitled to joint possession thereof. (ii) for a declaration that the will dated 14.7.1985 with the codicil dated 17.8.1988 made in favour of the third defendant, and gift deed dated 10.9.2003 made in favour of fourth defendant were void and non-est “qua the coparcenary. (iii) for a declaration that the sale deeds dated 20.4.2001, 24.4.2001 and 6.7.2001 executed by his father S. Rajinder Singh in favour of the first defendant and sale deed dated 27.9.2003 executed by the alleged power of attorney holder of S. Rajinder Singh in favour of second defendant, in regard to certain agricultural lands (described in the prayer) are null and void qua the rights of the “coparcenary” as they were not for legally necessity or for benefit of the family and (iv) for consequential injunctions restraining defendants 1 to 4 from alienating the suit properties.” 9. A perusal of prayer clause reproduced above clearly reveals that there was no relief claimed for cancellation of the sale deed on the ground of fraud or impersonation rather the same was prayed to be declared null and void on the ground that the same was not for legal necessity or for the benefit of the family and thus in other words the sale deed was sought to be ignored/avoided. On the other hand, in the present case, a complete reading of the plaint reveals that the substantive relief of the plaintiffpetitioner is for cancellation of the sale deed on the ground of fraud and impersonation and, therefore, it will be justified to direct the plaintiff to pay ad valorem court fee on the basis of consideration amount in the sale deed dated 28.6.2006. 10. 10. Keeping in view the facts and circumstances discussed hereinabove, no illegality or perversity can be found with the impugned order dated 18.1.2010 (P.4) passed by the learned Civil Judge (Jr. Division), Karnal warranting interference under Article 227 of the Constitution. Dismissed. --------------