CR No.1339 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1339 of 2009 (O&M) Date of decision: 10.07.2009 Hanuman ..Petitioner Versus Sukhram and Ors. ...Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr.P.K.Ganga, Advocate, for the petitioner. Mr.D.K.Jangra, and Mr.Sarwinder Goyal, Advocates, for respondent No.1. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- VINOD K. SHARMA,J. CM No.5870-CII of 2009 Allowed. The petitioner is exempted from filing the certified CR No.1339 of 2009 2 copies of Annexures P.1 to P.5. CM No.5871-CII & CR No.1339 of 2009 The petitioner has invoked the jurisdiction of this court under Article 227 of the Constitution of India to challenge the order dated 24.1.2009 passed by the learned Civil Judge (Senior Division, Dabwali allowing an application moved under Order 7 Rule 11 of the Code of Civil Procedure (for short the Code). The plaintiff/petitioner filed a suit for declaration to the effect that the plaintiff was owner in possession, of land in dispute to the extent of 1/7th share along with the legal heirs of Ganesha as recorded in the Jamabandi for the year 2002-03 at village Ganga, Tehsil Dabwali District Sirsa. Claim was based on inheritance from Ridmal. The plaintiff also challenged the Will set up by the defendants to be null and void and result of fraud being forged and fictitious, therefore, not binding on the rights of the plaintiff. The mutation sanctioned on the basis of Will was also challenged. On an application moved under Order 7 Rule 11 of the Code, learned trial court held that as the petitioner has challenged the Will executed in favour of the defendant/respondents, therefore, ad valorem court fee was payable. Learned counsel for the petitioner stated that the main relief sought was for declaration and challenge to the Will was only consequential and not the main relief as it was for the defendant-respondents to prove the Will, to defeat the right of inheritance. CR No.1339 of 2009 3 It is further the contention of the learned counsel for the petitioner that the land in dispute was agricultural land and ad valorem court fee payable would be in terms of Section 7 (iv) of the Court Fee Act as amended by the State of Haryana. The contention raised was that the requisite court fee stood paid. It was, therefore, contended that the impugned order cannot be sustained. Mr.D.K.Jangra, learned counsel appearing on behalf of respondent No.1, however, by placing reliance on the judgment of this court in the case Ajmer Singh Vs. Punjab Singh (Minor) and another, 2007 (1) RCR (Civil) 436 contended that if the plaintiff seeks cancellation of the sale deed, on the ground of fraud, he is required to affix ad valorem court fee. Reliance was also placed on the judgment of this court in the the case of Raj Kumari Amrit Kaur Vs. Maharani Deepinder Kuar 2002 (1) RCR (Civil) 284, wherein it was held that where the suit is for declaration, that the Will be declared invalid and cancelled and as a consequential relief, plaintiff be given joint possession of the property, the ad valorem court fee is leviable. On consideration of matter, I find that the judgments relied upon by the learned counsel for the respondents are not applicable to the present case. In the case of Ajmer Singh Vs. Punjab Singh (Minor) and another(supra), the petitioner sought cancellation of sale deed and thereafter sought possession. Similarly in the case of Raj Kumari Amrit CR No.1339 of 2009 4 Kaur Vs. Maharani Deepinder Kuar (supra) the main relief sought was of declaration of Will to be declared invalid with a consequential relief of joint possession. In the present case, the plaintiff has sought declaration of ownership and possession by way of inheritance. Challenge to Will is not the main relief but merely a consequential. Even otherwise, the court fee payable was as per amended Act, and it could not, therefore, be said that the suit was bad for non-payment of ad valorem court fee. For the reasons stated above, revision petition is allowed. The impugned order is set aside, the application moved by the respondent/ defendants under Order 7 Rule 11 of the Code is ordered to be dismissed but with no order as to costs. Revision allowed. 10.07.2009 (Vinod K.Sharma) rp Judge