CR No.5614 of 2005 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.5614 of 2005 (O&M) DATE OF DECISION: 27.07.2010 **** Hukam Singh . . . . Petitioner VS. Sunder and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Adarsh Jain, Advocate for the petitioner. Mr.J.S. Hooda, Advocate for the respondents. **** RAKESH KUMAR JAIN J. (ORAL) This revision petition is directed against the order passed by Civil Judge (Jr. Division) Palwal dated 04.10.2005 by which an application moved by defendants No.4 to 10 under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (for short ‘CPC’) has been accepted on the grounds that the present suit is not maintainable because the plaintiff has not paid the ad valoram Court fee, which is required according to law. The said application was allowed and plaintiff was directed to pay the ad valoram Court fee as per the sale consideration mentioned in the sale deed as referred in the plaint and the case was adjourned for filing the requisite ad valoram Court fee by the plaintiff. CR No.5614 of 2005 (O&M) - 2 - On 27.10.2005, this Court had issued noticed of motion observing thus: - “Counsel contends that the petitioner has filed the suit for declaration and permanent injunction, on the basis of title, as such he is not liable to pay the court fee. Notice of motion for 12.12.2005. Operation of order under challenge shall remain stayed, till further orders.” On 08.12.2006, following order was passed by this Court: “All the respondents have appeared through Sh. J.S. Hooda, Advocate. Service is complete. Learned counsel for the petitioner submits that vide impugned order dated 4.10.2005, the learned trial Court has directed the plaintiff-petitioner to pay the Court fee ad volorum on the sale consideration. Further submits that operation of this order was stayed by this Court vide order dated 27.10.2005, while proceedings in the civil suit are going on. Admitted. To be heard within six months. Passing of the final judgment is stayed, meanwhile. CR No.5614 of 2005 (O&M) - 3 - If the civil suit pending in the learned trial Court reaches the stage of arguments, then the parties would be at liberty to file an application for early hearing of this case.” The petitioner has filed Civil Misc. No.5235-CII-2010 alleging therein that the case has now reached at the stage of final arguments, therefore, the main revision petition may be heard on merits. Notice in the application was issued on 09.03.2010 pursuant to which Mr.J.S. Hooda, Advocate has put in appearance for the respondents. Mr.Adarsh Jain, Advocate appearing on behalf of the applicant/petitioner has submitted that one Mukhtyari became owner of 56 kanals 18 marlas of land i.e. 1/6th share of 341 kanals 12 marlas on the demise of her son Raj Pal. Mutation No.819 of her ownership with regard to 56 kanal 18 marlas was also sanctioned. Mukhtyari then sold 9 kanals of land to one Sant Ram and 160/4909 share which is roughly 8 kanals to the plaintiff/petitioner on 06.06.1990 on the basis of which mutation No.912 was sanctioned on 5.6.1991. After the aforesaid sales Mukhtyari was left with 39 kanals 18 marlas of land. However, defendants No.1 & 2 filed a collusive suit against Mukhtyari on 10.5.1991 in respect of 56 kanals 18 marlas of land and after becoming owners of 56 kanals 18 marlas of land, defendants No.1 & 2 executed four sales deeds, which are as under: - “1. Defendant No.1 sold 23 kanals 19 marlas of land vide sale deed dated 11.6.1996. 2. Defendant No.2 sold 12 kanals 1 marla of land vide sale deed dated 01.03.2000. CR No.5614 of 2005 (O&M) - 4 - 3. Defendant No.2 sold 4 kanals of land vide sale deed dated 30.7.2001. 4. Defendant No.2 sold 4 kanals 19 marlas of land vide sale deed dated 07.08.2002. Learned counsel for the petitioner has submitted that though Mukhtyari was left with only 39 kanals and 18 marlas of land after the aforesaid four sale deeds yet she has illegally suffered a decree in respect of 56 kanals 18 marlas in favour of defendants No.1 and 2 who had further sold 44 kanals 19 marlas to defendants No.4 to 10. It is further submitted that since the present petitioner/plaintiff was not the party to the four sale deeds executed by defendants No.1 and 2 and is in possession of the land which was sold to him on 6.6.1990, he was not required to pay fixed ad valorum court fee with the plaint. In support of his submissions, he has relied upon a decision of the Supreme Court in the case of “Suhrid Singh @ Sardool Singh Vs. Randhir Singh and others” 2010 (2) RCR (Civil) 564 and decision of the Division Bench of this Court in CR. No. 22 of 2009 titled as “Dara Singh Vs. Gurbachan Singh and others” decided on 03.05.2010 in which by giving an illustration, this Court has held that : “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 nonest, 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 CR No.5614 of 2005 (O&M) - 5 - 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 nonest/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) (c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear CR No.5614 of 2005 (O&M) - 6 - that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.” On the other hand, Mr.J.S. Hooda, Advocate appearing on behalf of the respondents has vehemently argued that the plaintiff has also sought a decree of possession, therefore, he is liable to pay Court fee even as per the illustration given in para No.6 of the order passed by this Court in CR No.22 of 2009. I have heard both learned counsel for the parties and have perused the record with their assistance. Undisputedly, in the sale deeds executed by defendants No.1 & 2 mentioned hereinabove, the plaintiff is not a party, thus in terms of the law laid down by the Division Bench of this Court in CR. No.22 of 2009, plaintiff is not liable to pay the ad valorum Court fee as he is only seeking declaration being already in possession and insofar as the alternative prayer for possession is concern, it is a contingent event that in case the plaintiff is dispossessed and the possession is to be restored by the trial Court, plaintiff would pay ad valorum Court fee to claim that relief as well. In view of the above discussion, this revision is allowed and I hold that the order is patently illegal and as such the same is hereby set aside. No costs (RAKESH KUMAR JAIN) 27.07.2010 JUDGE Vivek CR No.5614 of 2005 (O&M) - 7 -