C.R. No. 6728 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 6728 of 2006 Date of Decision: 13.10.09 1. Jyotinder son of Sh. Rajender Singh son of Late Sh. Chandfer Mal; 2. Kunal Singh son of Sh. Rajender Singh (Minor) aged 14 years, through his mother Smt. Brahamvati Devi w/o Sh. Rajender Singh as next friend and natural guardian. 3. Ms. Jyoti daughter of Sh. Rajender Singh; 4. Ms. Monika daughter of Sh. Rajinder Singh; all residents of Dabua Colony, Dabua Pali Road, Near Ara Machine, NIT, Faridabad. ... Revision-Petitioners Versus 1. Rajender Singh son of Late Sh. Chander Mal resident of Dabua Colony, Sh. Veer Panch Mukhi Hanuman Mandir, Dabua Pali Road, NIT, Faridabad. 2. Dharambir Singh son of Late Sh. Chander Mal resident of Village Nawada Koh, Tehsil and District Faridabad. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Adarsh Jain, Advocate, for the revision-petitioners. Mr. Adish Gupta, Advocate, for the respondents. SHAM SUNDER, J. * * * * This revision-petition under Article 227 of the Constitution C.R. No. 6728 of 2006 2 of India, is directed, against the order dated 14.11.06, rendered by the Court of Civil Judge (Junior Division), Faridabad, vide which, it directed the plaintiffs/revision-petitioners, to pay the advalorem court fee, on the sale consideration of the sale deed. 2. Plaintiffs No. 1 and 2/revision-petitioners, claimed that, they are the sons, and plaintiffs No. 3 and 4/revision-petitioners, are the daughters of defendant No. 1/respondent. Defendant No. 1/respondent, inherited, as per his share, the property, in dispute, from his common ancestor, namely Chander Mal. As such, the property, in dispute, in the hands of defendant No. 1, is the ancestral co-parcenary property. Plaintiffs No. 1 and 2/revision-petitioners, claimed that, they are the co- parceners, in the property, in dispute, and had acquired right by birth therein. Defendant No. 1, sold land, measuring 11 biswas 10 biswansis, i.e. 1 bigha, 14 biswas and 10 biswansis, in favour of defendant No. 2, vide sale dated 06.08.04, without any legal necessity. The said sale, was also not for the benefit of estate. It was further stated that defendant No. 1, had no authority, whatsoever, to sell the property, in dispute, without the consent of the co-parceners. The plaintiffs, requested the defendants, to treat the sale deed as illegal, but to no avail. On their final refusal, left with no alternative, a suit for declaration, that the sale deed, was null and void, and liable to be cancelled, and for permanent injunction, was filed. 3. During the pendency of the suit, an application, under Order 7 Rule 11 of the Code of Civil Procedure, was filed, by C.R. No. 6728 of 2006 3 defendant No. 2/respondent, stating therein, that since the relief, with regard to the cancellation of the sale deed, had been sought, the plaintiffs/revision-petitioners, were required to pay advalorem court fee, on the sale consideration. 4. This application, was contested, by the plaintiffs/revision- petitioners, stating therein that, since the property, in dispute, is the Joint Hindu Family coparcenary property, and they were not a party to the sale deed, they were not required to pay the advalorem court fee. 5. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, accepted the application, and directed the plaintiffs, to pay the advalorem court fee, vide the order impugned. 6. Feeling aggrieved, the instant revision-petition, has been filed by the revision-petitioners. 7. I have heard the Counsel for the parties, and have gone through the documents, on record, carefully. 8. The Counsel for the revision-petitioners, submitted that, since the plaintiffs, were not a party to the sale deed, and, on the other hand, being coparceners, in the property, in dispute, only sought the substantive relief of declaration and the remaining reliefs flow out of the same. He further submitted that, as such, no advalorem court fee, was required to be paid, by them. He placed reliance on Chatter Singh & others Vs. Zile Singh & others, CR No. 1981 of 2007, Bhagwan Kaur & others Vs. Amrik Singh and others, 2007(1), Civil Court C.R. No. 6728 of 2006 4 Cases 14, Raj Kumar and others Vs. Shri Dadu Dayal Trust and others, 2007(1), RCR (Civil), 173, Bhag Singh Vs. Jarnail Singh and others, 1990(2), RRR, 262, Smt. Shanti Devi Vs. Harbans Singh and another, 1990(2), RRR, 263, Ishwar Vs. Smt. Om Pati and others (2006-2), PLR, 859, Nirmal Singh Vs. The State of Punjab and another, (2006-2) PLR, 860, Ram Singh and others Vs. Labh Singh and others (2006-1), PLR, 259, Gram Panchayat, Balad Kalan Vs. Commissioner, Patiala, Division and others (2006-1), PLR, 261, Smt. Beena and others Vs. Rajinder Kumar and others (2006-2), PLR, 7, and Kewal Krishan Vs. Mohan Singh (2006-2), PLR, 11, in support of his contention. He further submitted that the order impugned, being illegal, was liable to be set aside. 9. On the other hand, the Counsel for the respondents, submitted that the order impugned, is legal and valid. He further submitted that, since the independent relief of cancellation of the sale deed and permanent injunction, was also sought, the revision- petitioners, were required to pay advalorem court fee. He also placed reliance on Bijender Singh Vs. Chand Singh and others, 2009(1), RCR (Civil), 270, Satwinder Kaur @ Satinder Kaur Vs. Surjeet Singh & others, 2007(3), Civil Court Cases, 55 (P&H), and M/s Iron Master (India) Pvt. Ld. and another Vs. Punjab National Bank and another, 2002(2), RCR (Civil), 404, in support of his contention. 10. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered C.R. No. 6728 of 2006 5 opinion, the revision-petition, deserves to be accepted, for the reasons to be recorded, hereinafter. From the averments, contained in the plaint the Court, was required to determine, as to what substantive relief, had been sought, by the plaintiffs, and what amount of court fee, was required to be paid, by them, on such relief. In the instant case, the plaintiffs, claimed that they are the coparceners, in the property, in dispute, the sale deed, had been executed, by defendant No. 1, without any legal necessity, and the same, was also not for the benefit of estate. In Bhagwan Kaur and others' case (supra), the plaintiffs, were in joint possession of the suit land with the defendants, who were co-parceners. They filed a suit for declaration, that they were owners of suit land and sought consequential relief of permanent injunction, restraining the defendants, from alienating the suit land. They also sought declaration that the gift deeds, were illegal, and liable to be set aside. In these circumstances, it was held, that the plaintiffs, were not required to pay the advalorem court fee, on the ground, that they had sought declaration, being coparceners, in the Joint Hindu Family property, and challenge, to the gift deeds, was only ancillary. In Raj Kumar and others' case (supra), the principle of law, laid down, was to the effect, that if the substantial relief claimed, is of declaration and cancellation of sale deed is only a consequential relief, the court fee payable, would not be advalorem. In Gurjeewan Singh Vs. Jagar Singh and others (1990-1), 97, PLR, 261, the principle of law, laid down, was to the effect, that where the challenge is under the Hindu Law, to the C.R. No. 6728 of 2006 6 alienation, made by the father, on the ground, the same being without legal necessity and consideration, the suit is for declaration and the relief of possession, being only consequential, advalorem court fee, was not required to be paid. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. The plaintiffs/revision-petitioners, were, thus, not required to pay the advalorem court fee, on the sale consideration, as directed, by the Court below. On the other hand, the court fee, to the extent of ten times of the land revenue, was required to be paid, which has already been paid, by the plaintiffs/revision-petitioners. The submission of the Counsel for the revision-petitioners, to the effect, that the order, being illegal, is liable to be set aside, being correct, is accepted. 11. In Bijender Singh's case (supra), a suit for possession, by way of partition and permanent injunction, was filed, on the allegations, that Manohar Lal son of Hazari, was the absolute owner of the property, in question, and his estate, was inherited and succeeded, by his sons and daughters, as they claimed themselves to be the co- sharers, in joint possession. They also claimed cancellation of the decree and the sale deeds. It was held that, in the absence of cancellation of the decree and the sale deed, the relief of declaration, could not be granted. The plaintiffs, were, thus, directed to pay advalorem court fee. It was not a case, in which, the plaintiffs, claimed themselves to be the co-parceners, in the property, in dispute. In Satwinder Kaur @ Satinder Kaur's case (supra), relief was sought, for C.R. No. 6728 of 2006 7 the cancellation of the sale deed, executed by attorney, as also the power of attorney, which was executed, by the plaintiff. In these circumstances, it was held, that the advalorem court fee, was payable. In M/s Iron Master (India) Pvt. Ltd. and another's case (supra), the petitioner, filed a suit for cancellation of decree, on the ground, that the same, was obtained, by fraud and misrepresentation. Prayer for injunction, restraining the defendant, was also made. In these circumstances, it was held, that the petitioner, was liable to be pay advalorem court fee. The facts of the cases, cited in this paragraph and relied upon, by the Counsel for the respondents, are clearly distinguishable, from the facts of the instant case. Under these circumstances, no help, can be drawn, by the Counsel for the respondents, from the ratio of law, laid down, in these cases. The submission of the Counsel for the respondents, that the revision- petitioners, were liable to pay the advalorem court fee, on the sale consideration, and the order, is legal, being without substance, stands rejected. 12. For the reasons recorded above, the revision-petition, is accepted. The order impugned, is set aside. The parties, are directed, to appear, in the trial Court, on 16.11.09, at 10.00 AM sharp, for further proceedings. 13.10.2009 (SHAM SUNDER) Amodh JUDGE