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2015 DIGILAW 2255 (PNJ)

Bachhittar Singh v. Gurmail Singh

2015-12-10

AMIT RAWAL

body2015
JUDGMENT Mr. Amit Rawal, J. (Oral):- The petitioner-plaintiffs are aggrieved of the order dated 21.05.2015 (Annexure P-3), whereby, they have been called upon to pay the ad valorem Court fee on the market price as per Clause V of Section 7 of the Court Fee Act, 1870 (hereinafter referred to as 1870 Act). 2. Mr. Sunny K. Singla, learned counsel appearing on behalf of the petitioner-plaintiffs submits that the plaintiffs are not the executant of the sale deed. It is the father, who had executed the sale deed on 02.07.1974 and he died in the year 1985. Thereafter the suit was filed in the year 2014. The relief sought in the plaint reads thus:- “It is, therefore, prayed that the suit of the plaintiff may kindly be decreed and a decree for:- i) For declaration to the effect that the sale deed No.1801 dated 2.7.1974 allegedly executed by defendants No.1 to 5 from Gurdial Singh (deceased) and performa defendants No.6 to 11 in their favour, is illegal, null and void, misrepresentation, without any right or authority, of the land and the plaintiffs are the owners of land comprising in Khewat No.31/42 khasra No.676/1 (4- 15), 677/2(2-10) total 7B-5B and khata No.32/43, khasra No.676/1 (4-15), 677/2(1-10), khata No.35/47, khasra No.682/2min(0-0), total 8B-15B situated at village Sidhuwal Tehsil and Distt. Patiala as per jamabandi for the year 1969-70. ii) For possession of the above said property fully detailed and described above, situated at village Sidhuwal, Tehsil and Distt. Patiala. iii) For permanent injunction, restraining the defendants, their agents, partymen, supporters from transferring, selling mortgaging, alienating or creating any charge over the land fully detailed and described above situated at village Sidhuwal, Tehsil and District Patiala, may kindly be passed in favour of the plaintiff and against the defendants.” 3. From the perusal of the aforementioned, it appears that plaintiffs have sought three fold relief, i.e., for declaration, possession and permanent injunction. 4. From the perusal of the aforementioned, it appears that plaintiffs have sought three fold relief, i.e., for declaration, possession and permanent injunction. 4. In support of his aforesaid contention, he relied upon the judgment of this Court in Boda Ram vs. Beermati Devi and others, [2014(3) Law Herald (P&H) 2630] : Vol.CLXXIV (2014-2) PLR 31 to contend that in a suit for declaration having been filed by the legal heirs of the executant, the Court fee has to be paid on the sale consideration and not on the market value, in essence, the Court fee would be liable to be paid as per Section 7 (iv)(c) of the 1870 Act and not as per Clause V of Section 7 of 1870 Act and thus, prays that impugned order is not sustainable in the eyes of law. 5. Mr. R. K. Shukla, learned counsel appearing on behalf of respondents No.1 to 5 submits that no doubt, the petitioners are not executant of the sale deed but the fact remains that they have sought the relief for possession. Vis-a-vis claim of possession, they have to pay the ad valorem Court fee on the market value of the land. In support of his aforementioned contention, he relied upon the judgment of the Hon’ble Supreme Court in Suhrid Singh @ Sardool Singh vs. Randhir Singh and others, [2010(2) Law Herald (SC) 1371 : 2010(2) Law Herald (P&H) 1356 (SC)] : 2010 AIR (SC) 2807. 6. I have heard learned counsel for the parties and appraised the paper book. 7. Noticing the relief sought by the petitioners, no doubt, had relief been only for declaration, the petitioners would be liable to pay the Court fee on the sale consideration. Since they have also sought the possession of the property as per the ratio decidendi culled out by the Hon’ble Supreme Court in para No.6 of Suhrid Singh’s case (supra), they are liable to pay the Court fee on the market value of the land. For the sake of brevity para No.6 reads thus:- “6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A’ and `B’ — two brothers. `A’ executes a sale deed in favour of `C’. Subsequently `A’ wants to avoid the sale. `A’ has to sue for cancellation of the deed. On the other hand, if `B’, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A’ is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If `A’, the executant of the deed, seeks cancellation of the deed, he has to pay advalorem court fee on the consideration stated in the sale deed. If `B’, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B’, a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.” 8. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.” 8. Judgment in Boda Ram’s case (supra) pertains to the suit filed for declaration and not for possession and the learned Single Judge had no occasion to determine this controversy. 9. Keeping in view the aforementioned observations, there is no illegality and perversity in the impugned order calling upon the plaintiff-petitioners to pay the Court fee vis-a-vis possession on the market value of the land is legal and justified and the impugned order cannot be said to have been passed without jurisdiction. 10. Accordingly, the revision petition is dismissed.