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2014 DIGILAW 3193 (ALL)

Yogendra Kumar Saini v. Mahesh Kumar Tayal

2014-10-17

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Nipun Singh, Counsel for the revisionist. This revision has been filed from the order of Civil Judge (Senior Division) Kairana, Muzaffarnagar, dated 23.5.2014 passed in Suit No. 416 of 2012, rejecting the application (27-C) of the revisionist for direction to the plaintiff to supply Court Fee in the suit on the valuation of  Rs. 20 lac. 2. Mahesh Kumar Tayal filed a suit (registered as Suit No. 416 of 2012) for declaring the sale-deed dated 7.9.2012, allegedly executed by him in favour of the defendant as null and void and for permanent injunction restraining the defendant from making any alteration and demolition in the property in dispute. The plaint case was that the suit property was ancestral property of the plaintiff and fell in his share in private partition between his brothers. After partition, the plaintiff constructed three shop and stair case at ground floor and residential accommodation at first floor and is residing in it. In one shop at first floor the plaintiff is doing business and one shop was let out to one Intzar son of Natthu. Third shop was let out to the defendant Yogendra Kumar Tyagi and his brother Sushil Kumar Tyagi on 1.12.2000, for period of three months on the rent of  Rs. 1000/- per month. Later on a registered lease deed dated 16.12.2000 was executed by the parties. The defendant requested the plaintiff to raise construction over the land lying at backside of his shop as he wanted to increase his business and let out to him as his brother had already shifted his business to some other place and agreed to pay rent of  Rs. 3000/- per month. It was also agreed between the parties that the defendant would pay  Rs. 7 lac by way of security to the plaintiff and required construction would be raised by the plaintiff. On 7.9.2012, the plaintiff and his wife went to Tahsil Shamli for executing lease agreement and took a cheque of  Rs. 7 lac as the security money. However, the defendant got a sale-deed executed and obtained signature of the plaintiff in the garb of lease agreement. Thereafter, the plaintiff made construction over the backside land. On 7.9.2012, the plaintiff and his wife went to Tahsil Shamli for executing lease agreement and took a cheque of  Rs. 7 lac as the security money. However, the defendant got a sale-deed executed and obtained signature of the plaintiff in the garb of lease agreement. Thereafter, the plaintiff made construction over the backside land. On 11.9.2012, the defendant began to demolish the flooring of the shop, which was objected by the plaintiff, then he informed then he had obtained sale-deed of the shop in dispute. The sale-deed was obtained in garb of lease agreement by committing fraud. The defendant was the old tenant of the plaintiff and the plaintiff and his wife were semi literate persons and acted on the belief of the defendant. Value of the property in dispute was not less than  Rs. 20 lac however in the sale-deed sale consideration of  Rs. 8 lac has been shown. The suit was valued at  Rs. 8 lac i.e., on the sale consideration. Court fee of  Rs. 200/- was paid for the relief of declaration of the sale-deed as null and void and  Rs. 500/- was paid for the relief of permanent injunction. 3. The suit was contested by the revisionist, who filed his written statement and denied plaint allegation. In additional plea, it has been stated that the defendant was tenant in the shop in dispute. The plaintiff wanted to sell it and expressed his willingness of selling the shop. The defendant agreed to purchase it for  Rs. 8 lac. The plaintiff executed the sale-deed dated 7.9.2012 after taking sale consideration of  Rs. 1 lac in cash and  Rs. 7 lac through cheque and got the sale-deed registered. Allegation of taking the vacant land alongwith shop in dispute on the rent of  Rs. 3,000/- per month was false. There was no vacant land in the back portion of the shop in dispute as such allegation in this respect is false. No fraud has been committed on the plaintiff and sale-deed was voluntarily executed and signed by him after reading its contents. The plaintiff has read up to 9th class and his wife was a school teacher. The plaintiff is doing business of Iron Store and allegation that he was handicap, is false. Allegation that cheque of  Rs. 7 lac was given for security money, was false. The plaintiff has read up to 9th class and his wife was a school teacher. The plaintiff is doing business of Iron Store and allegation that he was handicap, is false. Allegation that cheque of  Rs. 7 lac was given for security money, was false. The suit was filed for cancellation of the sale-deed as such advalorem Court Fee is required to be paid on the valuation of the property in dispute. No relief has been claimed for possession over the property in dispute as such the suit is liable to be dismissed. 4. Trial Court framed issues in the suit. Issue Nos. 2 and 3 were framed relating to valuation of the suit and sufficiency of the Court Fee. Trial Court decided Issue Nos. 2 and 3 as preliminary issues by order dated 16.7.2013 and found that as the suit has been filed for adjudging the sale-deed dated 7.9.2012 as void as such Court Fee under section 7(iv-A) of the Court Fees Act, 1870 (as amended in U.P.) was required to be paid on the valuation of the property in dispute which was mentioned as  Rs. 8 lac in the sale-deed and directed the plaintiff to remove deficiency of Court Fee. 5. The plaintiff filed an application for consequential amendment of the plaint, in terms of the order dated 16.7.2013. The revisionist filed an objection (27-C) to aforesaid application and stated that as in paragraph-13(b) of the plaint, the plaintiff himself has mentioned valuation of the suit property as  Rs. 20 lac as such suit is liable to be valued to  Rs. 20 lac and Court Fee of  Rs. 1,50,407.50/- is required to be paid. The plaintiff filed his objection (28-C) on it and the matter was heard by Trial Court. Trial Court by the impugned order dated 23.5.2014 found that the suit has been filed for adjudging the sale-deed dated 7.9.2012 as void. In the sale-deed, valuation of the property in dispute has been mentioned as  Rs. 8 lac which is fully in accordance with the provisions of the Suit Valuation Act, 1887 and section 7(iv-A) of the Court Fees Act, 1870 (as amended in U.P.). On these findings objection of the revisionist has been rejected. Hence this revision has been filed. 6. The Counsel for the revisionist submitted that the suit was filed for declaring sale-deed dated 7.9.2012 as null and void. On these findings objection of the revisionist has been rejected. Hence this revision has been filed. 6. The Counsel for the revisionist submitted that the suit was filed for declaring sale-deed dated 7.9.2012 as null and void. The suit falls in the category of the suit as mentioned under section 7(iv-A) of the Court Fees Act, 1870 (as amended in U.P.). The plaintiff-is required to pay Court Fee on the valuation of suit property. The plaintiff, himself, has given valuation of the suit property as  Rs. 20 lac in paragraph-13(b) of the plaint as such value of the subject-matter of the suit is  Rs. 20 lac and the plaintiff is required to pay Court Fee on this valuation and not on  Rs. 8 lac as held by the Trial Court. He relied upon the judgment of this Court in Rajendra Prasad Yadav v. Ravindra Nath Singh 2014 (102) ALR 620 , in which it has been held that valuation of the suit involving cancellation of or adjudicating void or voidable a sale-deed of immovable property would be on the market value of the subject-matter of sale and not on the sale consideration shown in the instrument. 7. I have considered the arguments of the Counsel for the revisionist. The relevant provisions of the Court Fees Act, 1870 are quoted below: - " Section 7 . Computation of fees payable in certain suits for money.--The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows: .................. 7. I have considered the arguments of the Counsel for the revisionist. The relevant provisions of the Court Fees Act, 1870 are quoted below: - " Section 7 . Computation of fees payable in certain suits for money.--The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows: .................. "For cancellation or adjudging void instruments and decrees--(iv-A)--In suit for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value, or an instrument securing money or other property having such value: (1) where the plaintiff or his predecessor-in-title was a party to the decree or the instrument, according to the value of the subject-matter; and (2) where he or his predecessor-in-title was not a party to the decree or instrument, according to one-fifth of the value of the subject-matter, and such value shall be deemed to be-- if the whole decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree was passed or the instrument executed, and if only a part of the decree or instrument is involved in the suit, the amount or value of the property to which such part relates. Explanation.--"The value of the property" for the purposes of this sub-section, shall be the market value, which in case of immovable property shall be deemed to be the value as computed in accordance with sub-section (v), (v-A) of (v-B), as the case may be." "For possession of land, houses and gardens-(v)-- In suits for the possession of land, houses and gardens-according to the value of the subject-matter; and such value shall be deemed to be-- (i) where the subject-matter is land, and-- (a) Where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Collector's register as separately assessed with such revenue; and such revenue is permanently settled thirty times the revenue so payable; (b) Where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid; and such revenue is settled, but not permanently ten times the revenue so payable; (c) Where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue, and net profits have arisen from the land during the three years immediately preceding the date of presenting the plaint-twenty times the annual average of such net profits; but when no such net profits have arisen therefrom the market value which shall be determined by multiplying by twenty the annual average net profits of similar land for the three years immediately preceding the date of presenting the plaint; (d) Where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and does not come under Clause (a), (b) or (c) above-- the market-value of the land which shall be determined by multiplying by fifteen the rental value of the land, including assumed rent on proprietary cultivation, if any; (ii) Where the subject-matter is a building or garden-- according to the market-value of the building or garden, as the case may be. Explanation.--The word 'estate' as used in this sub-section, means any land subject to the payment of revenue for which the proprietor or farmer or raiyat shall have executed a separate engagement to Government or which, in the absence of such engagement, shall have been separately assessed with revenue. For possession of superior proprietary and under-proprietary land-(v-A)- In suits for possession-- (1) of superior proprietary rights where under-proprietary or sub-proprietary rights exists in the land-- according to the market value of the subject-matter, and such value shall be determined by multiplying by fifteen the annual net profits of the superior proprietor; (2) of under-proprietary or sub-proprietary land as such-- according to the value of the subject-matter, and such value shall be determined by multiplying by ten the annual under-proprietary or sub-proprietary rent, as the case may be, recorded in the Collector's register as payable for the land for the year next before the presentation of the plaint. If no such rent is recorded in the Collector's register the value shall be determined in the manner laid down in Clause (c) of sub-section (v) of this section save that the multiple will be ten. Explanation.--Land held by any permanent lessees shall be treated for the purposes of this sub-section, as under - proprietary or sub-proprietary land. Possessory suits between tenants--(v-B)--In suits for possession of land between rival tenants and by tenants against trespasser-- according to the value of the subject-matter and such value shall be determined if such land is the land of-- (a) a permanent tenure-holder or a fixed rate tenant--by multiplying by twenty the annual rent recorded in the Collector's register as payable for the land for the year next before the presentation of the plaint; (b) an ex-proprietary or occupancy tenant--by multiplying by two such rent in case of suits for possession of land between rival tenants, and by annual rent in suits by tenants against trespassers; (c) any other tenant-- by annual rent. If no such rent is recorded in the Collector's register, the value shall be determined in the manner laid down in Clause (c) of sub-section (v) of this section save that the multiple shall be that entered in Clauses (a), (b) and (c) of this sub-section according as the class of tenancy affected is governed by Clause (a), (b) or (c) of this sub-section." 8. In Rajendra Prasad Yadav's case (supra) this Court held that valuation of the suit involving cancellation of or adjudicating void or voidable a sale-deed of immovable property would be on the market value of the subject-matter of sale and not on the sale consideration shown in the instrument. It has further held that market value of the property would be determined according to the provisions of section 7(v), (v-A) and (v-B) in view of Explanation to section 7(iv-A) of the Court Fees Act, 1870. In paragraph-20 of judgment of that case, it has been held that sale consideration may reflect the market value of the subject-matter and in the event of there being no objection of its market value, same may be taken as market value for the purposes valuing the suit. 9. In this case, the revisionist has not denied the market value of the suit property as mentioned in the sale-deed as well as in the valuation clause of the plaint. Only controversy has been raised by the revisionist that advalorem Court Fee on such valuation was required to be paid. Trial Court, in the orders dated 16.7.2013 and 23.5.2014 found that the suit has been filed for adjudging the sale-deed dated 7.9.2012 as void. In the sale-deed, valuation of the property in dispute has been mentioned as  Rs. 8 lac which is fully in accordance with the provisions of the Suit Valuation Act, 1887 and section 7(iv-A) of the Court Fees Act, 1870 (as amended in U.P.). Now the plaintiff has supplied advalorem Court Fee on it. There is no illegality in the order of Trail Court. 10. Section 7 (iv-A) uses phrase "if the whole decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree was passed or the instrument executed". In this case, sale-deed dated 7.9.2012, which was in respect of the building is involved in the suit. According to Explanation the value of the property for the purposes of this sub-section, shall be the market value, which in case of immovable property shall be deemed to be the value as computed in accordance with sub-section (v), (v-A) of (v-B), as the case may be. In Rajendra Prasad Yadav's case (supra), subject-matter of the sale-deed was "land". According to Explanation the value of the property for the purposes of this sub-section, shall be the market value, which in case of immovable property shall be deemed to be the value as computed in accordance with sub-section (v), (v-A) of (v-B), as the case may be. In Rajendra Prasad Yadav's case (supra), subject-matter of the sale-deed was "land". The plaintiff has given liberty to value the suit according to the provisions of section 7(v), (v-A) and (v-B). 11. Supreme Court in Satheedevi v. Prasanna AIR 2010 SC 2777 , while interpreting similar phrase of section 40 of Kerala Court Fees and Suits Valuation Act, 1959, held that section 40(1) makes it clear that in a suit filed for cancellation of a document which creates any right, title or interest in immovable property, the Court fee is required to be computed on the value of the property for which the document was executed. To put it differently, the value of the property for which the document was executed and not its market value is relevant for the purpose of court-fee. If the expression "value of the subject-matter of the suit" was not followed by the deeming clause, it could possibly be argued that the word "value" means the market value, but by employing the deeming clause, the legislature has made it clear that if the document is sought to be cancelled, the amount of court-fee shall be computed on the value of the property for which the document was executed and not the market value of the property. The words "for which" appearing between the words "property" and "other documents" clearly indicate that the Court fee is required to be paid on the value of the property mentioned in the document, which is the subject-matter of challenge. If the legislature intended that fee should be payable on the market value of the subject-matter of the suit filed for cancellation of a document which purports or operates to create, declare, assign, limit or extinguish any present or future right, title and interest, then it would have, instead of incorporating the requirement of payment of fees on the value of subject-matter, specifically provided for payment of court-fee on the market value of the subject-matter of the suit as has been done in respect of other types of suits mentioned in sections 25, 27, 29, 30, 37, 38, 45 and 48. The legislature may have also, instead of using the expression "value of the property for which the document was executed", used the expression "value of the property in respect of which the document was executed". However, the fact of the matter is that in section 40(1) the legislature has designedly not used the expression "market value of the property". 12. Section 7 (v-ii) provides for valuation of the building and garden as market value. Section 7 (iv-A) uses same phrase "if the instrument is involved in the suit, the amount for which or value of the property in respect of which the instrument is executed". Hon'ble Single Judge in Rajendra Prasad Yadav's case (supra) found that as State of Uttar Pradesh a different mode for valuation of land has been provided as such, the plaintiff is entitle to value the suit according to the provisions as provided in Uttar Pradesh. However for building and garden, the market value has be given as the valuation of the suit. For the purposes of 'building and garden' interpretation as given by Supreme Court in Satheedevi's case (supra) is fully applicable and market value would be value in respect of which the instrument is executed. In view of aforesaid discussions, the impugned order does not suffer from any illegality. The revision has no merit and is dismissed.