ORDER : 1. The petitioner/defendant has filed the present petition under Article 227 of the Constitution of India being aggrieved by the order dated 19.01.2021 passed by the Additional District Judge, Badnagar Districti - Ujjain, whereby the application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 has been dismissed. 2. Respondents No. 1 & 2/plaintiff filed a suit for declaration and permanent injunction in respect of land bearing Survey No. 115/2 area 3.380 hectare situated at Village - Nanyakhedi, Tehsil - Badnagar, District - Ujjain. According to the plaintiffs, they are the joint owner of the suit land and no partition has taken place. Plaintiff No. 1 was in need of money, for which he borrowed an amount of Rs.13,00,000/- from defendant No. 1. In order to execute the agreement, she was called in the office of Deputy Registrar, where defendant No. 1 obtained her signature on blank paper and got prepared a forged power of attorney. Again they were in need of money and requested defendant No. 1 to give a loan of Rs.15,00,000/-. Plaintiff No. 2 put thumb impression on blank paper in the Office of Deputy Registrar and the amount was paid to her by way of cheque. The plaintiffs paid the interest amount of Rs.3,69,000/- as they borrowed money from defendants. According to the plaintiffs, the defendants are pressurizing and threatening them to sell the land. According to the plaintiffs, the defendants got prepared forged agreement to sale dated 07.08.2019 and 22.10.2019 and power of attorney in the name of defendant No. 2 dated 07.08.2019 and 22.10.2019. Therefore, the sale deed dated 05.09.2020 and 11.09.2020 are void and not binding on them, hence, they filed a suit on 22.10.2020 for declaration and permanent injunction. Though the plaintiffs have valued the suit to Rs.1,50,00,000/- on the basis of value of the land mentioned in the sale deed, but paid the fixed amount of court fee payable for decree of declaration and permanent injunction. 3. The present petitioner/defendant appeared and filed an application under Order VII Rule 11 of the CPC that the plaintiffs are liable to pay ad-valorem amount of the court fee as they are party to the power of attorney as well as sale deed, hence, the suit be dismissed due to non-payment of the ad-valorem court fee. 3. The present petitioner/defendant appeared and filed an application under Order VII Rule 11 of the CPC that the plaintiffs are liable to pay ad-valorem amount of the court fee as they are party to the power of attorney as well as sale deed, hence, the suit be dismissed due to non-payment of the ad-valorem court fee. Vide impugned order dated 19.01.2021, the learned Court has dismissed the application by holding that the plaintiffs are seeking decree that the sale deeds are void and not binding on them and they are not the party to the sale deed, therefore, they are not liable to pay the ad-valorem court fee. Hence, the present petition is before this Court. 4. Learned counsel for the petitioner submits that the petitioner duly executed the power of attorney as well as sale deed and virtually they are seeking declaration that sale deeds be cancelled, therefore, they are liable to pay the ad-valorem court fee. 5. Learned counsel appearing on behalf of the plaintiffs submits that the plaintiffs are alleging that the sale deed has been obtained by way of fraud, therefore, they are not liable to pay the ad-valorem court fee and only declaration is liable to be granted. 6. I have heard learned counsel for the parties at length and perused the record. 7. The Apex Court in the case of Suhrid Singh Alias Sardool Singh vs. Randhir Singh & Others, (2010) 12 SCC 112 has held that if the executant of a deed wants to avoid the sale, he has to sue for cancellation of deed. On the other hand, if the joint owner of the property, who is not an executant of the deed wants to avoid the sale deed, he has to sue for a declaration that the deed executed by one of the co-sharer/co-owner is invalid/void and non est/illegal and he is not bound by it. Paragraph-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. Paragraph-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. 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.” [Emphasis Supplied] 8. The Full Bench of this Court in the case of Sunil S/o Dev Kumar Radhelia & Others vs. Awadh Narayan & Others, 2010 (4) M.P.L.J. 431 held that when the plaintiff makes an allegation that the instrument is void and no binding upon him and declaration simplicitor prayed, then he need not to pay the ad-valorem court fee. 9. The Full Bench of this Court in the case of Sunil S/o Dev Kumar Radhelia & Others vs. Awadh Narayan & Others, 2010 (4) M.P.L.J. 431 held that when the plaintiff makes an allegation that the instrument is void and no binding upon him and declaration simplicitor prayed, then he need not to pay the ad-valorem court fee. 9. The Division Bench of this Court in the case of Ambika Prasad & Others vs. Shri Ram Shiromani @ Chandrika Prasad Dwivedi & Another, 2011 (3) M.P.L.J. 184 has considered the judgment of Apex Court in the case of Suhrid Singh (supra) and judgment of Full Bench in the case of Sunil Radhelia (supra) and held that admittedly the plaintiff is an executant of the sale deed sought to be declared as void. The sale deed bears his thumb impression and the sale consideration is clearly mentioned therein, hence, the sale deed, in our considered opinion, is voidable and plaintiffs have to pay the ad-valorem court fee as held by the Supreme Court in the case of Suhrid Singh (supra). So far as the judgment passed in the case of Sunil Radhelia (supra) is concerned, same was not produced before the Full Bench and had this decision been brought to the notice of Full Bench in all probability they too would have taken the same view. Paragraphs-11 & 12 of the judgment passed by the Division Bench is reproduced below: “11. In the case at hand, plaintiff No. 1 was admittedly an executant of the sale deed sought to be declared as void. The sale deed also bears his thumb impression and the sale consideration is clearly mentioned therein. The plaintiffs in their suit for declaration have prayed that the sale deed be declared as void by alleging that it was executed by playing fraud and misrepresentation. The relief claimed implies a relief for cancellation of sale deed because plaintiff No. 1 (now dead) was an executant of the same. The sale deed, in our considered opinion, is voidable as the apparent state of affairs is a real state of affairs and the plaintiffs, who have alleged otherwise, are obliged to prove it as void. The plaintiffs, therefore, have to pay ad-valorem Court fee on the consideration stated in the sale deed. The sale deed, in our considered opinion, is voidable as the apparent state of affairs is a real state of affairs and the plaintiffs, who have alleged otherwise, are obliged to prove it as void. The plaintiffs, therefore, have to pay ad-valorem Court fee on the consideration stated in the sale deed. As held by the Supreme Court in Suhrid Singh (supra), had plaintiff No. 1 been a non-executant the plaintiffs could have merely paid a fixed Court fee provided in Entry 17 (iii) of Second Schedule of the Act. 12. It is true that in Sunil Radhelia (supra), the Full Bench has held that ad-valorem Court fee is not payable when the plaintiff makes an allegation that (he instrument is void and not binding on him even if he be the executant of the document. But it is equally true that the decision of the Supreme Court in Suhrid Singh (supra), was not placed before the Full Bench and, therefore, it is not referred therein. Had the decision of Suhrid Singh been brought to the notice of the Judges of Full Bench, in all probability they too would have taken the same view which we have taken.” [Emphasis Supplied] 10. In view of the aforesaid dictum of Apex Court as well as Division Bench of this Court Suhrid Singh & Sunil Radhelia (supra) respectively, the impugned order dated 19.01.2021 is set aside. The trial Court is directed to value the suit and direct the plaintiffs to pay the ad-valorem fee, before proceeding further in the suit. 11. With the aforesaid, Miscellaneous Petition stands allowed.