Civil Revision No. 3756 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3756 of 2009 Date of decision:-07.11.2011 [ENTITY] and others Petitioners Versus [ENTITY] and others Respondents
CORAM: HON'BLE MS. JUSTICE [ENTITY] Present:- Mr. [ENTITY], Advocate for the petitioners. Mr. [ENTITY], Advocate for respondent Nos. 1 & 2. [ENTITY] J.
This civil revision petition under [SECTION] of the [ACT] read with [SECTION] of the [ACT] (for short 'the [ACT]') is for setting aside order dated 04.05.2009 (Annexure P-4) passed by Civil Judge, Senior Division, Sultanpur Lodhi District Kapurthala whereby an application under [SECTION] of the Code seeking rejection of the plaint was declined.
The plaintiffs have filed a suit for declaration that they are joint owners in possession in equal shares of the land described at point A to K in the head note of the plaint and further declaration that sale deed dated 28.01.2008 registered at No. 2579 dated 29.01.2008 and executed by defendant No. 1 as alleged attorney of plaintiffs in favour of defendant Nos. 2 and 3 (real brothers of defendant No. 1) and defendant No. 4 (real son of defendant No. 4) with respect to the lands and General Power of Attorney dated 19.12.2007 registered on behalf of plaintiffs in favour of defendant No. 1 are illegal, void, outcome of fraud. The plaintiffs have further filed a suit for permanent injunction restraining the defendants from interfering into the possession of the plaintiffs over the suit land and also from alienating in any manner.
Therefore, defendants sought rejection of the plaint on the ground that proper Court fee has not been affixed by the plaintiffs. Since the plaintiff was not seeking the possession but was claiming himself to be in possession of the suit land. It was directed that plaintiff is not to pay ad valorem Court fee. The trial Court, vide impugned order dated 04.05.2009 had held that plaintiffs are not liable to pay ad valorem Court fee on the sale consideration in the sale deed dated 28.01.2008.
Hon'ble the Supreme Court in the case of [ENTITY] vs. Randhir Singh and others, AIR 2010 SC 2807 has examined this issue and has held that if a non-executant is in possession and sues for declaration that the deed is null or void and does not bind him or his share, he has to merely pay fixed court-fee of Rs. 19.50 under Article 17
(iii) of Second Schedule of the Act. On the other hand, 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] provides that in suits for 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 aforesaid view is discernible from Para 6 of the above mentioned judgment which reads as under:-
"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'. 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."
In the present case, plaintiff has sought relief of declaration for setting aside the sale deed that they are joined owners in possession and that the sale deed is in possession of the defendants, is illegal and result of fraud and with a consequential relief of permanent injunction restraining the defendants from interfering in the possession. They have not sought the relief of possession as they claim to be in joint possession. They are not to pay the ad valorem Court fee as per law laid down by Hon'ble the Supreme Court in [ENTITY] case (supra).
A Division Bench of this Court in [CASE NUMBER] titled as [PRECEDENT], decided on 15.07.2011, has followed the judgment of Hon'ble the Supreme Court and has come to the conclusion that if a non-executant seeks annulment of a deed when he is not a party to the document , he is to seek a declaration that deed is invalid, non-est, illegal or that it is not binding upon him. In that eventuality, he is to pay the fixed Court fee as per [SECTION] of the Act.
In view of the aforementioned facts and applying the ratio of aforesaid judgments, order dated 04.05.2009 passed by trial Court requires no interference.
Accordingly, civil revision is dismissed.
07.11.2011 ( [ENTITY] ) [ENTITY] JUDGE