C. R. No. 7751 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 7751 of 2009 Date of Decision : August 19, 2010 Charan Singh .... Petitioner Vs. Mohinder Kaur and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. K. S. Dhillon, Advocate for the petitioner. Mr. Naresh Parbhakar, Advocate for the respondents. * * * L. N. MITTAL, J. (Oral) : Defendant no.1 Charan Singh has filed the instant revision petition under Article 227 of the Constitution of India challenging order dated 12.05.2009 (Annexure P-3) passed by learned Civil Judge (Junior Division), Kapurthala, thereby dismissing application Annexure P-2 moved by defendant no.1 under Order 7 Rule 11 of the Code of Civil Procedure (in short – CPC). Plaintiff-respondent no.1 Mohinder Kaur is wife of defendant no.1-petitioner Charan Singh, whereas defendant-respondent no.2 C. R. No. 7751 of 2009 2 Sukhjinder Singh is their son. Respondent no.1 has filed suit seeking declaration that the suit house, in which defendant no.1 has 11/12th share, is shared household of plaintiff and defendant no.1 and therefore, plaintiff being wife of defendant no.1, has right to live/reside in the said house. The plaintiff has also sought declaration that transfer deed dated 06.03.2009 allegedly executed by defendant no.1 in favour of defendant no.2 regarding the suit property is null and void etc. and is not binding on the right of the plaintiff to reside in the suit house. The plaintiff has also claimed permanent injunction restraining defendant no.1 from dispossessing the plaintiff from the suit house and from depriving her to reside there. Defendant no.1, in his application Annexure P-2, alleged that sale deed dated 06.03.2009 has been executed by defendant no.1 in favour of defendant no.2 for Rs.22,90,000/- and therefore, plaintiff is required to pay ad valorem court fee on the said consideration. The said application has been dismissed by the trial court by impugned order Annexure P-3. Feeling aggrieved, defendant no.1 has preferred the instant revision petition. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner vehemently contended that the plaintiff has sought declaration as well as consequential relief of permanent injunction and therefore, in view of Second proviso to Section 7 (iv) (c) of the Court Fees Act, 1870 (in short – the Act), court fee is payable C. R. No. 7751 of 2009 3 under Section 7 (v) of the Act i.e. on market value of the suit property. In support of this contention, reliance has been placed on unreported judgment dated 03.05.2010 passed by Division Bench of this Court in Civil Revision No. 22 of 2009 titled Dara Singh vs. Gurbachan Singh and others, wherein observations of Hon'ble Supreme Court in the case of Suhrid Singh @ Sardool Singh vs. Randhir Singh and others - C. A. No. 2811-13 of 2010 decided on 29.03.2010 have been quoted in extenso and in view thereof, question referred to the Division Bench has been answered without any further discussion. On the other hand, learned counsel for respondent no.1-plaintiff contended that respondent no.1-plaintiff is not party to the transfer deed in question and therefore, ad valorem court fee is not payable. Reliance in support of this contention has been placed on two judgments of this Court namely Ravinder Kumar vs. Narinder Kumar and others reported as 2007 (2) R. C. R. (Civil) 1 and Harmail Singh vs. Gurmail Singh and others reported as 2009 (4) R. C. R. (Civil) 323. I have carefully considered the rival contentions. Perusal of plaint Annexure P-1 instituted by respondent no.1 reveals that the plaintiff claims herself to be in possession of the suit house. The plaintiff has not claimed the consequential relief of possession of the suit property. Consequently, Section 7 (iv) (c) of the Act is not applicable to the instant case. On the other hand, observations of Hon'ble Supreme Court in the case C. R. No. 7751 of 2009 4 of Suhrid Singh @ Sardool Singh (supra), as quoted in the judgment of this Court in the case of Dara Singh (supra), rather go against the petitioner in the instant case. It was observed by Hon'ble Supreme Court in the case of Suhrid Singh @ Sardool Singh (supra) that if non- executant of the sale deed under challenge is in possession of the property and sues for declaration that the sale deed is null and void, such plaintiff has to pay fixed court fee under Article 17 (iii) of Second Schedule to the Act. The case is fully covered by said illustration given in the judgment of Hon'ble Supreme Court. In the instant case, the plaintiff is not party to the transfer deed in question. The plaintiff also claims herself to be in possession of the suit property. The plaintiff has simply claimed declaration and permanent injunction, for which fixed court fee is payable. The plaintiff has not claimed the relief of possession of the suit property, which relief could make her liable to pay ad valorem court fee. It may be mentioned before concluding that transfer deed under challenge is not sale deed, as wrongly pleaded by defendant no.1-petitioner in application Annexure P-2. Defendant no.1 incorrectly pleaded in the said application that he had sold the suit property to defendant no.2 for Rs.22,90,000/- vide sale deed dated 06.03.2009. However, admittedly the deed in question is not a sale deed not it was executed on payment of sale consideration of Rs.22,90,000/-. It is only gratuitous transfer deed by the father defendant no.1 in favour of son defendant no.2. C. R. No. 7751 of 2009 5 For the reasons aforesaid, I find no illegality in the impugned order of the trial court. Plaintiff-respondent no.1 is not liable to pay ad valorem court fee. The revision petition is without any merit and is accordingly dismissed. August 19, 2010 ( L. N. MITTAL ) monika JUDGE