Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 459 (JHR)

Rudwa Devi v. Lalji Mahto

2018-02-21

ANIL KUMAR CHOUDHARY

body2018
ORDER Anil Kumar Choudhary, J. - I.A. No. 2846 of 2013 Heard learned counsel for the appellants. 2. This appeal has been preferred against the judgment and decree passed by Civil Judge (Senior Division)-IV, Hazaribagh in Title Suit No. 45 of 2007 dated 2nd May, 2012 whereby and where under, learned court below has come to a conclusion that the plaintiffs have title and possession over only 12 V decimals out of the total suit land 28 decimals and learned court below also came to a conclusion that sale deed Nos. 517, 518, 519 and 520 are not illegal and binding upon the plaintiffs. 3. Learned counsel for the appellants submitted that suit was filed with the prayer for two declarations as follows:- i. Declaration of title of plaintiff over schedule ''A land. ii. Declaration that the sale deed Nos. 517, 518, 519 and 520 dated 15.02.2007 is void and illegal and inoperative and is not binding upon the plaintiff. 4. The stamp reporter relying upon the order dated 17.12.2009 passed in I.A. No. 2174 of 2009 in F.A. No. 164 of 2009 has reported that an ad-valorem court fee of Rs. 10,730/- is payable in this appeal. 5. In the said order dated 17.12.2009, in I.A. No. 2174 of 2009, in the facts and circumstances of that case where the suit was filed for a decree of declaration that the registered deed of gift is null and void and is not binding upon the plaintiff and as in that case in the court below ad-valorem court fee was paid by the plaintiff, a coordinate Bench of this Court observed that in view of the settled principle of law that in a suit for declaration that a sale deed or gift deed is void and is not binding on the plaintiff, ad-valorem court fee is payable and referring to the judgment of Hon''ble Supreme Court reported in A.I.R.1960 S.C. 980, it was ordered that the appellant shall pay ad-valorem court fee. 6. Learned counsel for the appellants drew the attention of the Court to Article 17 of Schedule II of the Court fee Act, 1870, which reads as under:- 17. Plaint or memorandum of appeal in each of the following suits:- Ten rupees. 6. Learned counsel for the appellants drew the attention of the Court to Article 17 of Schedule II of the Court fee Act, 1870, which reads as under:- 17. Plaint or memorandum of appeal in each of the following suits:- Ten rupees. (i) to alter or set aside a summary decision or order of any of the Civil Courts not established by Letters Patent or of any Revenue Court (ii) to alter or cancel any entry in a register of the names of proprietors of revenue paying estates; (iii) to obtain a declaratory decree where no consequential relief is prayed (iv) to set aside an award (v) to set aside an adoption (vi) every other suit where it is not possible to estimate at a money-value the subject-matter in dispute, and which is not otherwise provided for by this Act 7. It is further submitted by the learned counsel for the appellant that the fixed court fee of Rs. 10/- as mentioned in the said schedule has since been revised to Rs. 250/- and as in this case the suit has been filed with prayer for declaration of sale deeds executed by the defendants to be null and void and the plaintiff is in possession of the suit land, there being prayer for two separate declarations, the court fee is payable by the appellants is Rs. 500/-. 8. The Hon''ble Supreme Court of India has settled the principle of law regarding the payment of court fee in declaratory suits in paragraphs 4, 5 and 6 of the case of Suhrid Singh @ Sardool Singh v. Randhir Singh and Ors. ( AIR 2010 SC 2807 ) as under: - "4. The limited question that arises for consideration is what is the court-fee payable in regard to the prayer for a declaration that the sale deeds were void and not ''binding on the coparcenary'', and for the consequential relief of joint possession and injunction. 5. Court-fee in the State of Punjab is governed by the Court-fees Act, 1870 as amended in Punjab (''Act for short). Section 6 requires that no document of the kind specified as chargeable in the First and Second Schedules to the Act shall be filed in any court, unless the fee indicated therein is paid. Entry 17(iii) of Second Schedule requires payment of a court-fee of Rs. Section 6 requires that no document of the kind specified as chargeable in the First and Second Schedules to the Act shall be filed in any court, unless the fee indicated therein is paid. Entry 17(iii) of Second Schedule requires payment of a court-fee of Rs. 19.50 on plaints in suits to obtain a declaratory decree where no consequential relief is prayed for. But where the suit is for a declaration and consequential relief of possession and injunction, court-fee thereon is governed by section 7(iv)(c) of the Act which provides : "7. Computation of fees payable in certain suits:- The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows: (iv) in suits - x x x x (c) for a declaratory decree and consequential relief.- To obtain a declaratory decree or order, where consequential relief is prayed, x x x x x according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. In all such suits the plaintiff shall state the amount at which he values the relief sought: Provided that minimum court-fee in each shall be thirteen rupees : Provided further that in suits coming under sub-clause (c), in cases where the relief sought 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 this section." The second proviso to section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court-fee should be reckoned with reference to the revenue payable under clauses (a) to (d) thereof; and where the relief is in regard to the houses, court-fee shall be on the market value of the houses, under clause (e) thereof. 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 illegal or that it is not binding on him. 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 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 ''A1 and ''B'' - two brothers. ''A1 executes a sale deed in favour of ''C1. Subsequently ''A'' wants to avoid the sale. ''A1 has to sue for cancellation of the deed. On the other hand, if ''B1. who is not the executant of the deed, wants to avoid it. he has to sue for a declaration that the deed executed by ''A1 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 ''A1, 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. 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." (Emphasis supplied) 9. 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." (Emphasis supplied) 9. Considering the aforesaid facts and circumstances, as the appellants are non executant''s of the sale deeds sought to be declared null and void and claims to be in possession of the suit land, have to pay court fee of Rs. 500/-. 10. The Interlocutory Application, stands disposed of accordingly.