C.R. No. 2554 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 2554 of 2010 Date of decision:- 21.12.2011 Hira Singh & others ...Petitioners Versus Ram Singh and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. S.K. Yadav, Advocate for the petitioners Mr. G.S. Virk, Advocate for Mr. G.S. Nagra, Advocate for the respondents 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? RITU BAHRI J. This revision petition is against order dated 19.03.2010 passed by learned Additional Civil Judge (Sr. Divn.), Narnaul, vide which the petitioners have been directed to pay advolorem Court fee as per the value of the property mentioned in the sale deeds. Brief facts of the case are that the petitioners have purchased 39 kanal 11 marlas land from the father of respondent No. 1-Bhagat Singh son of Kala Singh on 03.06.1974 vide registered sale deed for a sale consideration of ` 33,000/- and mutation has been sanctioned in favour of the petitioners on 05.1.1976 No. 953. All the numbers were recorded by the C.R. No. 2554 of 2010 -2- Revenue officials in the ownership column, in favour of the petitioners except one number i.e 21/21/2 (4-18), total measuring 4 kanal 18 marla. The above said land was not transferred in favour of the petitioners. This land was shown in the ownership of Bhagat Singh and after the death of Bhagat Singh, mutation No. 1149 dated 10.04.1992 has been sanctioned in favour of respondent No. 1-Ram Singh. Thereafter respondent No. 1 sold this land to respondent No. 2-Gajender Singh, vide sale deed No. 368 dated 07.05.2007. When respondent No. 2 came for taking possession of the above said 4 kanal 18 marla of land in the killa number 21/21/2 then he came to know this fact that petitioners are owner in possession of the above said number as they have purchased this land way back in the year 1974. Thereafter, respondent No. 2 has further sold this land to respondent No. 3, who is daughter in law of respondent No. 1, in connivance with respondent No. 1, vide sale deed No. 547 dated 16.05.2007 i.e just after 9 days of the earlier sale deed. Petitioners have challenged both the sale deeds i.e sale deed No. 368 dated 07.05.2007 and sale deed No. 547 dated 16.05.2007 along with mutation No. 1149 dated 10.04.1992. The respondents filed an application under order 7 Rule 11 of the Code of Civil Procedure. The learned Trial Court allowed the application of the respondents and a direction has been given to the plaintiffs to pay ad valorem court fee as per value of the property mentioned in the sale deeds. Mr. S.K. Yadav, learned counsel for the petitioner has placed C.R. No. 2554 of 2010 -3- reliance on the judgment of this Court rendered in a case of ' Ravinder Kumar vs. Narinder Kumar and others, 2007(2) R.C.R (Civil) 1' to contend that as per Section 7(iv) (b) (c) where plaintiff is not a party to the sale deed and the decree, he is not bound by the acts of third party and Section 7 (iv) (b) (c) are not attracted for payment of ad valorem Court fee On the other hand, learned counsel for the respondent has placed reliance on the judgment of this Court rendered in a case of 'Bhupesh Kumar Sharma and others vs. Manohar Kumari and others, 2007(2) R.C.R (Civil) 784 to contend that in a suit for declaration that sale deeds were not binding on the plaintiffs. The plaintiffs had also sought possession. In that situation, Court fee was payable in terms of Section 7(v) of the Court Fees Act, 1970 Hon'ble the Supreme Court in the case of Suhrid Singh @ Sardool Singh 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 7(iv) (c) in suits for declaratory decree with consequential relief, the Court fee shall be computed according to the amount at which the relief sought is C.R. No. 2554 of 2010 -4- 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.” A Division Bench of this Court in Tarsem Singh and others vs. Vinod Kumar and others, has followed the judgment of Hon'ble the Supreme Court in Suhrid Singh @ Sardool Singh case (supra) wherein it has been held:- “i) If the executant of a document wants a deed to be annulled, he is to seek cancellation of the deed and to pay advalorem Court fee on the consideration stated in the said sale deed. C.R. No. 2554 of 2010 -5- ii) But if a non-executant seeks annulment of deed i.e. when he is not party to the document, he is to seek a declaration that the 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 Article 17 (iii) of the Second Schedule of the Act. iii) But if the non-executant is not in possession and he seeks not only a declaration that the sale deed is invalid, but also a consequential relief of possession, he is to pay the advalorem Court fee as provided under Section 7(iv)(c) of the Act and such valuation in case of immovable property shall not be less than the value of the property as calculated in the manner provided for by Clause (v) of Section 7 of the Act”. In the present case, the petitioner had purchased the land measuring 39 kanals 11marla. Mutation was sanction in his favour except one khasra number i.e 21/21/2(4-18).This land was subject to sale deeds under challenge. The petitioner is a non-executant in possession and is seeking annulment of the sale deeds. He is covered under condition No 2, which reads as under:- “ii) But if a non-executant seeks annulment of deed i.e. when he is not party to the document, he is to seek a declaration that the 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 Article 17 (iii) of the Second Schedule of the Act.” He is not liable to pay ad valorem Court fees. In view of the above, civil revision is allowed. Consequently, order dated 19.03.2010 passed by learned Additional Civil Judge (Sr. Divn.), Narnaul is set aside. 21.12.2011 ( RITU BAHRI ) G.Arora JUDGE