C.R No.53 of 2011 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R No.53 of 2011 Date of order: 24.1.2011 Darshan Kumar and others ....Petitioners Versus Puran Singh and others ...Respondents CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Ms. Rajvinder Kaur Advocate for Mr. T.K. Joshi, Advocate for the petitioners. JASWANT SINGH, J By way of filing this petition under Article 227 of the Constitution, petitioners have sought for setting aside the order dated 11.12.2010 passed by learned Civil Judge (Jr.Division), Dhuri District Sangrur whereby application filed by the defendants-respondent Nos.1 to 8 under Order 7 Rule 11 CPC for rejection of the plaint due to non-payment of proper court fee was allowed while directing the plaintiffs-petitioners to deposit ad valorem court fee. In nutshell, the facts of the case are that the plaintiffs- petitioners filed a suit for declaration that four sale deeds between the period from 25.8.1979 to 17.4.2002 allegedly executed by one Bhuri Ram- predecessor in interest of the plaintiffs-petitioners in favour of defendants- respondents No.1 to 5, Jarnail Singh and Bhagwan Singh sons of Sohan C.R No.53 of 2011 #2# Singh as described in the head note of the plaint. There was a further prayer for permanent injunction restraining the defendants from alienating the suit land. During the pendency of the suit, an application under Order 7 Rule 11 CPC was filed by the defendants-respondents and alleged that the plaintiffs had affixed court fee of Rs.100/- i.e Rs.50/- for relief of declaration and Rs.50/- for relief of permanent injunction whereas the court fee is required to be affixed according to the value of the suit property mentioned in four sale deeds under challenge. Notice of the application was given to the plaintiffs-petitioners, who filed their reply to the application and submitted that the plaintiffs are seeking declaration of their title of ownership and status of mortgagees mainly and further their right to get the same redeemed. It was also submitted that the plaintiffs are not the signatories of the alleged sale deed and therefore, they are not liable to pay the court fee on the value of alleged sale deed. Lastly, it was submitted that the court fee is properly affixed. After hearing both the sides, learned Civil Judge (Jr. Division), Dhuri came to the conclusion vide order dated 11.12.2010 that the plaintiffs are required to pay the ad valorem court fee on the sale deeds under challenge and the operative part of the order reads as under: “After hearing learned counsel for the parties and going through the pleadings mainly the plaint of the plaintiffs, I am of the considered view that plaintiffs have drafted the plaint cleverly and under the cloak of mortgage, basically they challenged the sale deeds in question. Moreover, the sale deeds are alleged to be executed by one Bhuri Ram Predecessor in interest of the plaintiffs. So, obviously they are supposed to step into the shoes of said Bhuri Ram and they are challenging the sale deeds being the result of fraud. So, they are required to pay the ad valorem C.R No.53 of 2011 #3# court fee on the sale deeds challenged by them.” Learned counsel for the petitioners-plaintiffs has argued that the impugned order passed by the learned trial Court while directing them to pay the ad valorem court fee is not sustainable in the eyes of law in view of the decision of this court in case of Sita Wanti v. Yash Pal Singh @ Jaspal Singh, 2006(4) RCR (Civil), 564. There is no doubt that the plaintiffs-petitioners are challenging the legality and validity of following four sale deeds: “1. Sale deed No.1300 dated 25.8.1979 2. Sale deed No.353 dated 6.5.2002 3. Sale deed No.2826 dated 28.5.2002 4. Sale deed No.139 dated 17.4.2002” Admittedly and undisputedly, the plaintiffs-petitioners are not in possession of the land involved in the sale deed under challenge, which is very much clear from the reading of paragraph 17 & 18 of the plaint in which it is submitted that the plaintiffs have requested the defendants to redeem the land and to hand over the possession of the same to them but the defendants have refused to accede the request of the plaintiffs. It is also admitted that the land in question was under mortgage with possession with defendant Nos.1 to 5, Jarnail Singh and Bhagwan Singh. Therefore, virtually the plaintiffs are claiming the relief of possession also but they have cleverly drafted the prayer clause of the plaint by not explicitly mentioning the relief of possession. Law is well settled that when a non- executant of a sale deed, who is not possession and seeks the declaration of that sale deed has to pay an ad valorem court fee as provided under Section 7 (iv) © of the Court Fee Act, 1870 as amended in the Punjab and reference in this regard has been made to a judgment of Hon'ble Supreme Court C.R No.53 of 2011 #4# reported as Suhrid Singh @ Sardool Singh v. Randhir Singh and Others 2010 AIR (SC) 2807. Relevant part of said judgment is reproduced hereunder: “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'. Subseequently '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) © of the Act.” The judgment cited by learned counsel for the petitioners in case of Sita Wanti's case (supra) is not applicable to the facts of the present case as in that case as it was specific case of the plaintiff that he was owner in possession of the land in dispute and he challenged the decree dated 6.11.1993 passed by a civil court being illegal, null and void and in those circumstances, this Court allowed his revision petition that since he is C.R No.53 of 2011 #5# not claiming the relief of possession and he was not required to pay an ad valorem court fee but in the present case, admittedly, as it is discussed above, the plaintiff-petitioners are not in possession of the land involved in the sale deeds under challenge rather it is the defendants-respondents, who are in possession. Keeping in view the facts and circumstances discussed hereinabove, this court does not find any illegality or perversity in the impugned order dated 11.12.2010 passed by the learned trial Court warranting interference by this Court under Article 227 of the Constitution. Dismissed. January 24, 2011 ( JASWANT SINGH ) manoj JUDGE