g3 K2 x ‘. /ékfy( / m / HIGH COURT OF CHHA NTI‘ISGARH AT/BILASPUR Sin le Bench: Hon'ble Mr. Justice Dhlr'endra Mishm t W.P. (227) No.4280/O8 (Pe’rifion U/A 227 of Consfifufion of India) Bharaf Kumar‘ Pe‘h’fl'oner Vs. Resgndenfs SmT. Roopa Bai & afhers J1) PosT FOR ORDER ON £2 sEPTEMBER zoos J Sd/- Dhirendra Mlshra ' Judge L509. 2008 " Hon'ble Mr. Jusfice bhirendm Mishra Sin le Bench; W.P. (227} No.4280/08 (Petition U/A 227 of Consfh‘ufion of India) Bhara‘f Kumar, S/o Ashok Kumar‘ Bablani, aged about 35 years, R/o Near Anand Provision Stores, Shyam Nagar, Post-Telibandha, Raipur, Tah. and Distt. Raipur (C.6.) Sm’r. Roopa Bai, Wd/o Ganesh, aged nbouT 24 years. (Minor) Bhushan, S/o Ganesh, aged abouf 8 years. Pefi'rioner Vs. Respondents 1. (Minor) Nemi, 5/0 6anesh, aged abouf 5 years. No.2 & 3 minor through their natural guardian mother Roopa Bai, aged about 24 years, Wd/o Ganesh All R/o Village Jora, Post and Police Station Telibandha, Tah. and Distt. Raipur (6.6.) Ganeshia Kurr'e, D/o Banmali Kurre, aged about 35 years. Ganeshi, S/o Banmali Kurre, aged about 22 years. No.4 8i 5 R/o Bhelwadhin, Post and Police Station Abhanpur, Distt. Raipur (C6) Banau Ram Kurre, S/o Narottam, aged about 45 years. 7. a. Ramadhar, S/o Late Ganesh, aged about 72 years. b. Basant Bharti, s/o Ramadhar, aged about 26 years. c. (Minor) Sant Bharti, S/o Ramadhar, aged about 15 year's. No. (c) Minor Through his natural guardian father .Ramadhar, aged about 72 years, S/o Late Ganesh. 8. Gendlal, S/o Banmali, aged about 24 years. No. 6 and 7 (a) (b) (c) & 8 all R/o Village Jora, Post and Police Station Telibandha, Distt. Raipur (C.G.) . State of Chhattisgarh, Through the Collector, Raipur. Present: Mr. Ravindra Agarwal, Advocate for the petitioner. Mr. Prateek sharma, Advocate for respondent No.1, 2 6i 3. None for respondent No.4 to 6. .Mr. Roop Naik, Advocate for respondent No.7 (a). ’None for respondent No.8. Mr. Vivek Sharma, Panel Lawyer for respondent N09. O R D E R (Passed on 19.9.2008) x Per Dhirendra Mishra J; 2. This wrh‘ pefifion under Ariicle 227 of fhe Consfi‘rufion of India is direcfed againsf the orders da'red 5.7.2008 (Annexure P— 3) passed in Civil Suif No.12A/06 whereby learned 9”‘ Addiiioncd Disfricf Judge (FTC), Roipur has rejected fhe prayer of The pefi‘rioner herein for deciding fhe issue regarding non-paymem‘ of ad— vaiorem courf fee as preliminary and dismiss The suit (Annexure P— 6) & 15.11.2007 J finding fhaf The aforesaid issue is a mixed quésfion of facf and law which can be decided only affer recording evidence. Relying upon The judgmenf in The ma'h‘er of Saleem Bhai & ors Vs. Sfafe of Maharash‘tra & ors repor‘red in 2003 sAR (Civil) 86 Supreme Cour? if was argued fhm‘ in appropriafe caSes applicafion under Order 7 Ruie 11 of fhe Code can be'decided on fhe basis of avermenfs in plainf affer affording an opporfunify of hearing fo fhe parfies in accordance wifh law. Furfher relying upon The judgmenT in The maTTer of Mohd. MusTafa Khan Vs. Gulam Raoof and oThers reporTed in AIR 1996 M.P. 11 iT is conTended ThaT preliminary issue framed under Order 14 Rule 2 of The Code which does noT require recording of evidence can be Tried as preliminary issue. Placing reliance in The maTTer of Mohammad Jameel Khan and oThers Vs. MiThThulal Khushal Singh Gujar and oThers reporTed in 1999 (1) M.P.L.J’. 37 iT was submiTTed ThaT where The suiT is for seTTing aside The sale deeds, The plainTiff is required To pay ad— valorem courT fee on The value of The sale deed under SecTion 7 (iv) (c) of The CourT Fees ACT. . On The oTher hand, learned counsel for The respondenTs vehemenTly argued ThaT sale deed in quesTion was goT execuTed by The defendanTs by forging The signaTure of The plainTiffs and since They were noT parTy To The sale deed, a decree of declarafion can be granTed in~ Their favour wiThouT necessiTy of seeking The relief of having The sale seT aside. In These circumsTances The CourT fees would be payable under ArTicle 17 of l Schedule—II and no ad-valorem courT fee under SecTion 7 (iv) (c) of The CourT Fees AcT. Reliance is place in The maTTer of Omprakash Vs. suraTram reporTed in 1994 M.P.L.J. 291. . I have heard learned counsel for The parTies. I have perused The impugned ‘ order as also The plainT (Annexure P-1) filed before The Trial courT. . As per pleadings of The plainTiffs, The plainTiffs and defendanTs are The recorded owners of dispuTed land. The dispuTed land was sold by i ' defendanT No.1 To 5 To defendanT No.6 by regisTered sale deed on The g V_ H . g .. g W ##1- basis of forged power of afforney purporTedly execufed by fhe plaintiffs, 'rhough fhey never execufed any power of afforney in favour of defendanf No.1 To 5. 8. In The maffers of Omprokosh (supra) in fhe idenTical focfs in Para—7 of fhe judgmem‘ i’r has been held thus:- "7. The plain’riffs have overred The impugned sale having been made by a person no1’ aufhorised To alienate their inferesf in The suif proper-Ty. IT is no’r Thal’ They admiT The defendanT No.2 To be Their power of aTTorney holder and Then seek avoidance of The sale. On The plainT, as iT sTands, The defendanT No.2 was noT The aTTorney of The plainTiffs’ and hence was incompeTenT To alienaTe The inTeresT of The plainTiffs. In oTher words, The plainTiffs alleged ThaT They have noT sold Their inTeresT in The suiT properTy, sTill The deed has come inTo exisTence purporTing To alienaTe Their inTeresT To defendanT No.1. The plainTiffs did noT admiT To be parTies To The impugned deed of sale direcTly or indirecTly. A bare declaraTion would, Therefore, suffice wiThouT The necessiTy of seeking The relief of having The sale seT aside. IT is differenT ThaT The plainTiffs would fail if The defendanT No.1 mighT succeed in proving auThoriTy by The plainTiffs given To The defendanT No.2 To alienaTe The ploinTiff-s' inTeresT in The suiT properTy, on The presenT seT of pleadings by The plainTiffs." IT has been furTher held in Para 13 of This judgmenT Thus; “13.5ubjecT To abovesaid observaTions, The revision is allowed. The impugned order is seT aside. IT is held ThaT The suiT valued by The plainTiff is liable To paymenT of I courT—fees under Schedule II, ArTicle 17 and noT under secTion 7 (iv) (c) of The CourT Fees AcT, 1870. No order as TO The cosTs. ‘ sew l