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2018 DIGILAW 562 (ALL)

SUMAN v. SURESHBALA

2018-03-08

BALA KRISHNA NARAYANA, IRSHAD ALI

body2018
JUDGMENT By the Court.—Heard Sri Santosh Kumar Srivastava, learned counsel for the appellant. The appellant filed the Original Suit No. 343 of 2011 before the Civil Judge (S.D.), Baghpat with the following reliefs : (i) for a declaration that the plaintiff-appellant be declared owner in possession of 1/4 portion of the land described at the foot of plaint and the industrial property / brick kiln existing at Khasara No. 500 area 2.4030 hectare situate in village Jalalpur, Tehsil Badaut, District Baghpat. (ii) For a decree for permanent injunction restraining the defendant from interfering with the plaintiff’s ownership and possession over 1/4 share of the suit property. (iii) Sale-deed dated 21.10.2009 registered in the office of Sub-Registrar Badaut in the book number first, division 2343, page 327/356, serial No. 9715, sale-deed dated 21.5.2010 registered in the office of Sub-Registrar Badaut in the book number first, division 2566, page 165/190, serial No. 4415, sale-deed dated 21.5.2010 registered in the office of Sub-Registrar Badaut in the book number first, division 2566, page 191/214, serial No. 4416 and sale-deed dated 26.7.2010 registered in the office of Sub-Registrar Badaut in the book number first, division 2640, page 349/368, serial No. 6687 be declared as null and void and an endorsement in this regard may be made in the record of the office of Registrar Badaut on the relevant page book division and serial number. (iv) The defendant be directed to pay cost to the plaintiff. (v) Any other relief which the Court may deem fit and proper to grant to the plaintiff under the circumstances of the case. 2. By the impugned order, the issue regarding the payment of Court fee has been decided by the learned Senior Judge holding that although the Court fee paid by the plaintiff appellant on prayer Nos. 1 and 2 is sufficient but the Court fee paid by the plaintiff appellant on prayer No. 3 is in-sufficient as in the garb of the third relief, the plaintiff appellant is actually seeking cancellation of four sale-deeds executed by defendant No. 1 in favour of defendant respondent Nos. 2 to 8 and hence he was liable to pay ad-valorem Court fee on the 1/5 market value of the suit properties which are subject-matter of the sale-deeds. 3. 2 to 8 and hence he was liable to pay ad-valorem Court fee on the 1/5 market value of the suit properties which are subject-matter of the sale-deeds. 3. It has been submitted that the learned trial Court while holding that the plaintiff-appellant was liable to pay ad-valorem Court fee on 1/5 value of the properties which are the subject-matters of the four sale-deeds lost sight of the fact that the plaintiff-appellant is a non executant and is not party to the aforesaid sale-deeds and he is merely seeking declaration and in view of the above, the plaintiff appellant is liable to pay Court fee as per Article 17 (III) of Second schedule of the Court fee Act. In support of his aforesaid contention he has placed reliance upon the judgement of the Apex Court rendered in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh and others, 2010 LawSuit (SC) 104. We have heard the learned counsel for the appellant and perused the impugned judgement and order and other material as well as law report cited by him before us. 4. Having gone through the plaint of suit No. 343 of 2011 very carefully, copy whereof has been annexed as Annexure-2 to the affidavit accompanying the stay application filed alongwith this appeal, we find that the sale-deeds which the plaintiff-appellant is seeking to be declared null and void were executed by defendant respondent No. 1 in favour of defendant respondent Nos. 2 to 8. There is no relief in the plaint for cancellation of four sale-deeds. The plaintiff-appellant is a non-executant and is not party to any of the sale-deeds. The Apex Court while examining the same issue in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh and others (supra) in paragraph 6 observed as hereunder : “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. 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’. 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. 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". The Apex Court, thus, held that where the executant of the deed is seeking cancellation, he has to pay ad-valorem Court fee on the consideration stated in the sale-deed. If the plaintiff-appellant who is 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. If the plaintiff-appellant who is 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. 5. In the present case also, the plaintiff-appellant is a non executant. He has not sought any decree for possession. Thus, applying the ratio of the case of Suhrid Singh @ Sardool Singh v. Randhir Singh and others (supra), we find that the view taken by the learned trial Court that the plaintiff appellant is liable to pay ad-valorem Court fee on the consideration stated in the sale-deeds as the plaintiff appellant has sought relief of cancellation of the sale-deeds cannot be sustained and the trial Court while observing that the plaintiff-appellant has sought the relief for cancellation of the sale-deeds has totally misread relief clause af the plaint of Original Suit No. 343 of 2011. 6. We, accordingly, allow this appeal and set aside the part of the impugned order by which the plaintiff-appellant has been directed to pay ad-valorem Court fees and hold that the plaintiff-appellant shall be liable to pay Court fee on the third relief claimed by him in the plaint under Article 17 (iii) of Second schedule of the Court Fee Act.