Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 2005 (ALL)

Ratni Devi Deceased v. Asha Hans

2022-12-20

UMESH CHANDRA SHARMA

body2022
JUDGMENT : Umesh Chandra Sharma, J. This civil revision has been filed against the judgment and order dated 23.11.2016 passed by the Additional Civil Judge (Senior Division), Court No. 6, Meerut in Original Suit No. 846 of 2014 (Smt. Ratni Devi v. Smt. Asha Hans). 2. In brief facts of the case are that revisionist, Smt. Ratni Devi filed a suit for declaratory decree to declare the sale-deed dated 7.5.2014 null and void registered in the office of Sub-Registrar, Mawana, District Meerut and to send its information to the concerned Sub-Registrar. 3. According to the plaint and the revision, Smt. Ratni Devi (now deceased) was the owner and Bhumidhar with transferable rights of khasra No. 460 area 0.5060 hectare and khasra No. 462 area 0.4430 hectare situated in Village Himaunpur, Pargana Hastinapur, Tehsil Mawana, District Meerut. She was an old and ill lady. Her cardiac treatment was going on. Respondent defendant is the daughter of the revisionist-plaintiff. The plaintiff was getting pension after death of her husband who was working in MCD, Delhi. When for the purposes of purchasing fertilizers she took a copy of khatauni on 19.7.2014, she came to know that defendant had got executed a sale-deed in her favour of her land. The plaintiff obtained a certified copy through advocate on 7.5.2014 then she came to know that it is shown that in lieu of Rs. 7,50,000/- she has sold 0.1145 hectare and 0.6707 hectare land to the defendant in which husband of the defendant and one Anil Kumar Sharma, advocate, Tehsil Mawana have been shown marginal witnesses. 4. The petitioner had neither proposed to sell her land to the defendant nor ever executed any sale-deed in her favour. On 7.5.2014 in the garb of increase of pension she was taken by the defendant and in good faith defendant got signed some papers telling it to be the pension papers which she had not read over. By playing fraud the defendant has shown the execution of sale-deed. There was no necessity of sale of property in suit. The plaintiff neither sold the land nor obtained any consideration. 5. During pendency of the case the plaintiff died. Her three sons namely Dinesh Kumar, Dev Kumar and Anand Kumar were her heirs and she had executed sale-deed on 20.8.2014 about complete movable and immovable property in their favour. There was no necessity of sale of property in suit. The plaintiff neither sold the land nor obtained any consideration. 5. During pendency of the case the plaintiff died. Her three sons namely Dinesh Kumar, Dev Kumar and Anand Kumar were her heirs and she had executed sale-deed on 20.8.2014 about complete movable and immovable property in their favour. Dev Kumar died on 18.3.2015, therefore, his heirs have been arrayed as plaintiff. When the matter was reported to the defendant she accepted her fault and assured to get the sale-deed cancelled but later on clearly refused to do so. Hence, cause of action arose and suit had been filed. 6. During the course of hearing on 19.4.2016, issue No. 2 regarding improper valuation of the suit and payment of insufficient Court fee, issue No. 3 were decided. So far as issue No. 2 is concerned the Court assumed that the plaintiff has properly valued the suit but about the payment of Court fee the lower Court held that since the property has been valued at Rs. 7,50,000/-, and the plaintiff was party to the sale-deed, therefore, under Section 7(IV)-A of the Court Fees Act, 1870 the plaintiff would pay ad valorem Court fee at the market value of the case property. 7. Instead of complying with the order regarding issue No. 3, the plaintiff moved 41-Ka amendment application, in which the plaintiff proposed to value the suit for relief 'A' at Rs. 600/- (thirty times of the annual rent of RS. 20/-) and proposed to pay the Court fees Rs. 87.50/-and for proposed relief 'B' regarding permanent injunction valuing the growing crops at Rs. 6 lacs proposed to pay maximum Court fee Rs. 500/-. 8. Objection was filed by the defendant and after hearing it was held that by way of amendment application the facts proposed to be inserted in paragraph-13 of the plaint would nullify the order dated 19.4.2016. Hence, the amendment application was not maintainable. Though an option was given to the plaintiff to move separate amendment application regarding the rest facts proposed to be inserted by way of amendment. Accordingly, the amendment application was rejected and the plaintiff was directed to pay the additional Court fees as per order dated 19.4.2016. 9. Being aggrieved the revisionist-plaintiff has filed this revision. 10. None appeared from the side of either party. Accordingly, the amendment application was rejected and the plaintiff was directed to pay the additional Court fees as per order dated 19.4.2016. 9. Being aggrieved the revisionist-plaintiff has filed this revision. 10. None appeared from the side of either party. Since the revision should be decided on merit, hence this revision is decided on merit as per law. 11. Admittedly, the suit has been filed for cancellation of registered sale-deed, in which the revisionist is the party to the deed. It is also admitted that the property in suit is land revenue payable agricultural land and the purpose of buying the land is mentioned as cultivation. Though, as per the market value of the property in suit was Rs. 17,17,000/- upon which the stamp duty for a sum of Rs. 76,000/- has been paid but Rs. 7,50,000/- is shown as consideration money. It is also noteworthy that plaintiff and defendant are the real mother and daughter. In the plaint, the plaintiff has valued the suit at Rs. 7,50,000/- but had paid maximum Court fee Rs. 200/- for relief (A) stating that the plaintiff had prayed for a declaratory decree to declare the sale-deed dated to be null and void. 12. First of all the nature of the land in suit is to be seen. Admittedly it is a land revenue paying agricultural land and no declaration for conversion of its nature has been made. For the purpose of this revision it would be proper to place some relevant citations in this regard which are given below. 13. In Ran Vijay and another v. Board of Revenue and another, 2017 (1) CAR 815 Alld, the petitioner was using the agricultural land as Aabadi. The petitioner's plea was that since the land in dispute has been used as Aabadi Revenue Court ceases to have jurisdiction to entertain the suit under Section 209 of the U.P.Z.A & L.R. Act. The Court held that the plea of the petitioner is not tenable because unless declaration under Section 143 for change, in use of land is obtained by the S.D.O, it will remain to be agricultural land and revenue Court will have jurisdiction to entertain the suit. The Court further clarified that even Civil Court or High Court cannot act as competent authority under Section 143 to grant such permission. 14. The Court further clarified that even Civil Court or High Court cannot act as competent authority under Section 143 to grant such permission. 14. In this case the property in suit is still an agricultural land and no declaration under Section 143 has been made. Hence, the land in suit shall be deemed to be land revenue paying agricultural land. 15. In Indal Kumar Kushwaha and another v. Rajesh Kumar Gupta and others, 2007(9) ADJ 649 , it is again held that unless agricultural land is notified under Section 143, it cannot be treated as residential land. 16. In M/s. Laxmi Sugar & Oil Mills Ltd. Hardoi and others v. State ofUttar Pradesh and another, 2010 (111) RD 617, it is held that if the land is occupied for agricultural purposes or connected with such purposes, it will continue to be an agricultural land even if Bhumidhar builds house in a agricultural holding or on form unless a declaration under Section 143 is obtained. 17. In Anuruddha Kumar and another v. Chief Controlling Revenue Authority and another, 2000 ACJ 1397 , it is held that since there was no declaration under Section 143 of changing the nature of the land into residential plot, it would be only agriculture land and not a residential plot. It is presumption that the plot sold was residential plot on the basis of its potential in future, is not reasonable. Thus, on the basis of aforementioned judgments and on the basis of documents available on record, it is concluded that the property in suit is an agricultural land and if any deed of transfer has been executed and registered in respect of an agricultural land and a suit for cancellation of such instrument is filed, it will be valued on the basis of land revenue and not on the basis of consideration money or the market value. 18. 18. Section 7 (IV-A) of the Court Fee Act is as under : (iv-A) For cancellation or adjudging void instruments and decree.- (iv-A) In suits 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 one or other property having such value: (1) where the plaintiff 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, (2) where he or his predecessor-in-title was not a party to the decree or instrument, according to one-fifty 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 party 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 the case of immovable property shall be deemed to be the value as computed in accordance with sub-section (v), (v-A) or (v-B), as the case may be. (iv-B) For easement.-In suits - (a) for a right to some benefit (not herein otherwise provided for) to arise out of land; (b) For an injunction. - to obtain injunction; (c) To establish an adoption.- to establish an adoption or to obtain a declaration that an alleged adoption is valid; (d) To set aside an adoption.- to set aside an adoption or to obtain a declaration that an alleged adoption is invalid or never, in fact, took place; (e) To set aside an award other than awards mentioned in Section 8.- to set aside an award not being an award mentioned in Section 8; according to the amount at which the relief sought is valued in the plaint: Provided that such amount shall not be less than one-fifth of the market value of the property involved in or effected by the relief sought or Rs. 200 whichever is greater: Provided further that in the case of suits falling under clauses (a) and (b), the amount of Court-fee leviable shall in no case exceed Rs. 500. 200 whichever is greater: Provided further that in the case of suits falling under clauses (a) and (b), the amount of Court-fee leviable shall in no case exceed Rs. 500. Explanation 1.-When the relief sought is with reference to any immoveable property the market-value of such property shall be deemed to be the value computed in accordance with sub-section (v), (v-A) or (v-B) of this section, as the case may be. (v) For possession of lands, buildings or gardens.-In suits for the possession of land, buildings or 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 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; 19. In this case, the plaintiff is the party to the deed, and the land in suit is land revenue payable land, therefore, the suit would be valued on the market value and the market value would be 30 times of the land revenue and if the land revenue is permanently settled, the Court fee would be paid 30 times of the revenue so payable and if the land revenue is not permanently settled the Court fee would be 10 times of the land revenue so payable. In this case it has been concluded and also admitted to the parties that the property in suit is a land revenue payable agricultural land, therefore, the suit would be valued on 30 times of the land revenue so payable as the plaintiff is party to the impugned sale-deed and the Court fee would be paid considering the fact as to whether the revenue is permanently settled or not. 20. 20. Normally inUttar Pradesh the land revenue are not permanently settled, therefore, even if a person party to the deed institutes a suit for adjudging the instrument to be null and void, he would value the suit at 30 times of the revenue so payable, but shall pay the Court fee on 10 times of the revenue so payable. 21. In this case, it is not denied to the defendant-respondent that the annual revenue of the property in suit is not Rs. 20/- annual. 22. In the proposed amendment the plaintiff had multiplied the annual land revenue Rs. 20/- x (into) 30 times which becomes Rs. 600/- upon which, he has proposed to pay Rs. 87.50 as Court fee. Here what is important to note that if the land revenue of the property in suit is not permanently settled, the plaintiff has to pay the Court Fee ten times of the land revenue so payable while he has proposed to pay the Court fee more than that, treating it to be land revenue permanently settled, thus the proposed amendment in respect of relief ''A'', is found to be true and correct and also in accordance with law. 23. The plaintiff has also proposed some factual amendments in amendment application stating that since 6.8.2016 the defendant had started obstacles in plaintiff's use and occupation over the property in suit and is trying to cut and damage the crops standing over the property in suit for which he has valued the suit at Rs. 6 lacks and has proposed to pay the maximum Court fee Rs. 500/- for the proposed relief of permanent injunction. 24. In Rajendra Prasad Yadav v. Ravindra Nath Singh and others, 2014(1) ADJ 304 this Court referring the cases- 1949 AWR 67(DB) (All) (Para 10), (2010)5 SCC 622 (Para 13), 2006 (100) RD 568 (Uttra) (Para 18), (2013) 1 SCC 579 (Para 7), 1972 AWR 808 (All) (Para11) has held that in case when a prayer has been made to declare the sale-deed null and void and to send the information to the concerned Sub-Registrar and if the property in suit is an agricultural land whereupon land revenue is payable, the suit shall be valued at the market-value and the market-value would be decided in view of the Section 7 (v), (v-A) or (v-B). Therefore, the view expressed in the aforementioned judgment is in support of the view expressed by this Court. 25. The proposed amendment dated 16.8.2016 was rejected by the Civil Judge (Senior Division) VI, Meerut, on the ground that if the proposed amendment is allowed, the order dated 19.4.2016 passed on issue Nos. 2 and 3 would be redundant. 26. From perusal of the record, it transpires that when the property in suit was an agricultural land, it had to be valued on the basis of land revenue so far as the relief for declaration of sale-deed to be null and void is concerned. It was fault of the advocate that he valued the suit at the consideration money instead of valuing the suit on the basis of 30 times land revenue payable to the Government. It appears that later on considering the mistake to correct the same, the proposed amendment application was moved and which was rejected on 23.11.2016. Since the Court was also knowing that the property in suit is an agricultural land whereupon land revenue is payable to the Government, therefore, it was also duty of the Court to point out the defects and to instruct the plaintiff to remove it through proper amendment besides deciding issue No. 3 in respect of Court fee against the plaintiff and directing her to pay the ad-valorem Court fee according to the consideration money. It appears that the lower Court was apprehending that if the amendment is allowed, the order passed on 19.4.2016 in respect of issue Nos. 2 & 3 would be nullified. Virtually the lower Court should have discarded such apprehension, mindset and fear while deciding the amendment application. According to this Court, the amendment should be decided in accordance with law enumerated under Order 6 Rule 17 C.P.C. If the amendment would have been allowed, the wrong committed by the plaintiff's counsel and the Court would have also been rectified. Even after accepting the amendments by amending issue Nos. 2 & 3, the question regarding valuation and Court fee could be decided again. 27. The Order 6 rule 17 C.P.C. is as under : Order VI Rule 17 Code of Civil Procedure : 17. Even after accepting the amendments by amending issue Nos. 2 & 3, the question regarding valuation and Court fee could be decided again. 27. The Order 6 rule 17 C.P.C. is as under : Order VI Rule 17 Code of Civil Procedure : 17. Amendment of pleadings-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 28. In this case till now the trial has not commenced, hence the proviso of Rule 17 does not apply and was no bar in allowing the amendment application. By the proposed amendment the nature of the suit, cause of action or the basis of suit was not going to be changed and no irreparable injury/damage was to be caused to the defendants. No such admission was proposed to be withdrawn on which basis any right had been accrued in favour of the defendant. 29. In Ganga v. Vijay, AIR 1974 SC 1126 , it is held that the power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation not withstanding ''amendment is permissible for determination of the real controversy between the parties''. 30. In Pirgonda v. Kalgonda, AIR 1957 SC 363 , it is held that amendment should normally be allowed if it does not cause injustice to the opposite party and is necessary for determination of real issues. 31. 30. In Pirgonda v. Kalgonda, AIR 1957 SC 363 , it is held that amendment should normally be allowed if it does not cause injustice to the opposite party and is necessary for determination of real issues. 31. Probably the lower Court would have thought that the proposed amendment is mala-fide but considering the facts from all four corners this Court is of the view that the proposed amendment was not mala-fide and if it would have been allowed later on the issues with regard to insufficiency of Court fee and valuation could have been amended and re-framed even by way of additional written statement, the defendant had an opportunity to take a plea that even after the amendment the suit is under valued and the Court fee paid is insufficient. Thus no injustice would have been caused to the defendant. 32. In Ram Chandra Sakharam v. Damodar, (2007) 6 SCC 737 , it is held that no amendment petition shall be rejected solely on the ground that there has been delay in applying for amendment. Because the delay could be compensated by awarding costs to the defendant. Amendment seeking to make claim more precise so as to enable the Court to adjudicate upon it more satisfactorily should be allowed. 33. In Rajesh v. K.K. Modi, AIR 2006 SC 1647 , it is held that while considering an amendment petition the Court should not go into the correctness or the falsity of the case in the amendment, nor should it record a finding on the merits of the amendment sought to be incorporated by way of amendment. 34. On the basis of the above discussions, this Court is of the view that the proposed amendment ought to have been allowed. Although, it was affecting the order passed by the lower Court earlier about the issues No. 2 & 3, but in spite of that after filing of additional written statement the issues regarding valuation and payment of Court fee would have been amended and the issues regarding valuation and Court fee would have been open to decide again. 35. The plaintiffs had also remedy to challenge the order dated 19.4.2016 passed in respect of issue Nos. 2 and 3. 35. The plaintiffs had also remedy to challenge the order dated 19.4.2016 passed in respect of issue Nos. 2 and 3. It is also noteworthy that the issue of valuation and payment of Court fee is between the plaintiff and the Court, therefore it was duty of the Court to consider that when the property in suit is land revenue payable agricultural land, why it was not valued as per Section 7(IV-A) and why the Court fee was not paid as per the existing law. The Court cannot take benefit of it's own wrong and if the plaintiff later on tried to correct the valuation clause, the Court should not have create hurdle in it. 36. On the basis of the aforementioned discussions, this Court is of the opinion that the revision deserves to be allowed and the order dated 23.11.2016 is liable to be quashed. 37. The revision is allowed. The order dated 23.11.2016 passed in Original Suit No. 846 of 2014 (Smt. Ratni Devi v. Smt. Asha Hans), is hereby set-aside. 38. Learned lower Court is directed to decide he amendment application afresh after affording opportunity to both the parties in light of the observations mentioned above. A copy of this Judgement be sent to the Additional Civil Judge (Senior Division)-6th Meerut, through the District Judge, Meerut, for immediate compliance. 39. The stay order dated 08th February, 2017, regarding stay of further proceedings of O.S. No. 846 of 2014, stands vacated.