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Madhya Pradesh High Court · body

2017 DIGILAW 186 (MP)

Devendra v. Virendra Kumar

2017-02-06

VIVEK RUSIA

body2017
ORDER 1. Petitioners/defendants have filed the present petition being aggrieved by the order dated 6.5.2016 by which application filed under section 8 of the Suit Valuation Act read with section 7(iv) of the Court-fees Act has been rejected. 2. Respondents No.1 and 2 being plaintiffs filed a suit for declaration, permanent injunction and possession against the present petitions. According to the plaintiff he and his brother are the owners of land bearing survey No.356/1, area 0.712 hectares. The said land was divided into various plots and sold by plaintiff and his brother. That one of the plot ad-measuring 20/36 ft. (total 720 sq. ft.) received by the plaintiff by way of partition was given to Jamunalal, father of defendants No.1 to 3 for residential purpose due to friendly relation with him on the condition that during his life time he will reside in a temporary structure made on it and after his death the same would be returned to the plaintiffs. Shri Jamunalal died in the year 2015 and when plaintiffs demanded possession of the said plot from defendants No.1 to 3 they demolished the temporary structure and instead of handing over possession to the plaintiff it was informed that they have purchased the said plot by way of registered deed from their father and later on they sold a part of the said land admeasuring 20×8 sq. ft. to defendant No.4. Therefore, plaintiff filed the suit that sale deed dated 2.7.2013 and 14.11.2014 be declared void and not binding on them and the plaintiffs be declared as owner of the said land and the defendants be restrained to make construction over the said plot. 3. After notice petitioners/defendants filed an application under section 8 of the Suits Valuation Act read with section 7(iv) of the Court-fees Act alleging that as per sale deed dated 2.7.2013 the value of the property is Rs.19,75,000/- and the present market value is Rs.26 lacs, therefore, plaintiffs be directed to value the suit as per the market value and pay the ad valorem court-fees. It is further submitted that the land has been diverted and it is no more agricultural land, therefore, it is required to be valued as per the market guidelines. 4. The said application was opposed by the plaintiffs and vide order dated 6.5.2016 the said objection was turned down, hence the present petition before this Court. 5. It is further submitted that the land has been diverted and it is no more agricultural land, therefore, it is required to be valued as per the market guidelines. 4. The said application was opposed by the plaintiffs and vide order dated 6.5.2016 the said objection was turned down, hence the present petition before this Court. 5. Shri Raghuvanshi, learned counsel on behalf of the petitioner submits that as per the pleading in the plaint there is a house over the land in dispute and the land is situated in a residential area and the plaintiff has claimed the relief of declaration, injunction and possession, therefore, plaintiffs are required to value the suit under section 7(iv)(c) of the court-Fees Act and liable to pay ad valorem court-fees. In the sale deed dated 2.7.2012 the market rate of the property was mentioned as Rs.19,75,000/-, therefore, the suit has to be valued as per the value of the property and not on the basis of the land revenue. In support of his contention he has placed reliance over the decisions in the case of Jai Kumar s/o Roadmalji Glhag (Jain) v. Shripal and others, reported in 2005(I) MPACJ 132, Shadab Grih Nirman v. Parita Grih Nirman Sahkari Samiti Maryadit and another, reported in 2007(1) MPWN 112 , and Vishnu Dayal v. Mst.Budhwara and others, reported in 2009(5) MPHT 94 (CG). 6. Shri V. K. Jain, learned counsel for the respondent/plaintiff submits that the land in dispute was an agricultural land when it was handed over to the defendants' father. The demarcation was done by the revenue authorities under section 49 of the Madhya Pradesh Land Revenue Code as the defendants were using the land for non agricultural purpose. Plaintiff has nothing to do with the order of diversion which was done behind their back and without their permission. Plaintiff are in possession of the Rin Pustika which was prepared by the revenue authorities because land is agricultural land. When the land was given to the father of defendants No.1 and 2 it was agricultural land and there was no Pukka construction over it. Plaintiff are in possession of the Rin Pustika which was prepared by the revenue authorities because land is agricultural land. When the land was given to the father of defendants No.1 and 2 it was agricultural land and there was no Pukka construction over it. Defendants No.1 to 3 have illegally purchased the property from their father and later on sold to defendant No.4, therefore, plaintiffs cannot be compelled to value the suit on the basis of the valuation of the sale deed and pay ad valorem court-fee, hence prayed for dismissal of the writ petition. 7. I have heard learned counsel for the parties. 8. In the application filed by the defendants they have simply prayed that the plaintiffs be directed to value the suit and pay the proper court-fees and did not pray for rejection of the plaint. For the objection which the defendants have raised in the application (Annexure P-4) they were required to file an application under Order 7 rule 11 CPC. Otherwise these objections were liable to be taken in the written statement and on the basis of these objections the Court is required to frame issue to the effect that whether the suit has been properly valued and proper Court fees has been paid or not. These issues are liable to be decided as preliminary issue on the basis of the evidence on record along with other issues on merit. The defendants have filed the application under a wrong provision of law and invited findings thereon. 9. It is settled law that the plaintiff is free to value his suit and pay the court-fees accordingly. Plaintiff has stated that he gave the land to father of the defendants No.1 to 3 as agricultural land, therefore, he is entitled to get back it as agricultural land. The defendants alleged to have illegally sold the land and got it diverted without plaintiffs' permission, therefore, the same cannot be binding on the plaintiffs. The plaintiffs cannot be made to suffer for the conduct of the defendants. Plaintiffs have valued the suit and paid court-fees on the basis of 20 times of the land revenue payable on the land, therefore, on the basis of the pleading in the plaint he has properly valued the suit and paid court-fees. The plaintiffs cannot be made to suffer for the conduct of the defendants. Plaintiffs have valued the suit and paid court-fees on the basis of 20 times of the land revenue payable on the land, therefore, on the basis of the pleading in the plaint he has properly valued the suit and paid court-fees. Since they are not party to the sale deed, therefore, they are not required to value the suit on the basis of the valuation of the sale deed. 10. The Supreme Court in case of Suhrid Singh @ Sardool Singh v. Randhir Singh and others, reported in (2010)12 SCC 112 , has held that the suit for declaratory relief and consequential relief in respect of agricultural land have to be calculated in terms of section 7(iv)(c) of the Court-fees Act. Para 7 of the said judgment is reproduced below :- “7. 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 ad valorem 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. 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.” 11. That under section 8 of the Suit Valuation Act when ad valorem court -fee is paid under section 7(iv)(c) of the Court-fees Act, 1870 the valuation made by plaintiffs for the purpose of court-fees shall govern the valuation for the purpose of jurisdiction also. 12. As held above the land is agricultural land and plaintiff has valued the suit 20 times of the land revenue and paid ad valorem court-fee in the suit. Hence, in view of the above discussion, plaintiff has properly valued his suit and paid proper court-fee. 13. Hence, I do not find any illegality committed by the trial Court while passing the impugned order. I find no merit in the petition. Accordingly, writ petition is dismissed.