1 W.P. No.6722/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.6722 OF 2010 Gayabai w/o Sandu Sonawane & ors. ... PETITIONERS VERSUS Babu s/o Devram Shinde & ors. ... RESPONDENTS ..... Shri C.R. Deshpande, Advocate for petitioners ..... CORAM : S.S. SHINDE, J. DATED : 10th August, 2011. Date of reserving order : 1.8.2011 Date of pronouncing order: 10.8.2011 O R D E R : 1. This writ petition is filed challenging the order dated 11.5.2010, passed by the Civil Judge, Junior Division, Soygaon in Regular Civil Suit No.2/2009. 2. The petitioners herein are original plaintiffs, who filed Regular Civil Suit No.2/2009 in the Court of Civil Judge, Junior Division, Soygaon for declaration and possession in respect of the land admeasuring 9 Hectors 93 Ares, out of Gat No.175 of village 2 W.P. No.6722/2010 Kini in Soygaon taluka. The plaint averments as narrated in Writ Petition can be summarised as under : The predecessor of the plaintiffs namely Sandu Ravji was in possession of the suit land till the year 1999. Sandu Ravji had one son namely Ramchandra. Sandu and Ramchandra, both were suffering from cancer and were required to attend hospital regularly for treatment. The suit land was in possession of Sandu Ravji since before 8.6.1958 till the year 1999. Since the plaintiffs were not able to cultivate the suit land as they were required to take care of Sandu and Ramchandra, they allowed the defendants to cultivate the suit land by way of oral agrement. The defendants, taking disadvantage of the situation, mutation their names in the column of possession and cultivation. The defendant Nos.1 and 2, in collusion with revenue officers, also recorded their names in the column of ownership. Sandu died on 10.3.2008 whereas Ramchandra died on 16.10.2007. After death of Sandu and Ramchandra, the plaintiffs demanded possession of the suit land from the defendants, however, the defendants denied to hand over the possession. The defendants had executed sale deed on 8.1.2003 behind the back of plaintiffs. 3 W.P. No.6722/2010 3. The defendants contested the suit by filing written statemnet at Exh.19 and denied the suit claim. They contended that, the son Sandu Ravji was tenant in the suit land. They further denied that by way of collusion with revenue authorities, the name of defendant Nos.1 and 2 were mutated. They have asserted that, father of defendant Nos.1 and 2 has been declared as tenant of land Survey no.100/2, but in his lifetime, the ownership certificate could not be issued to him. However, in the year 1995, ownership certificate was issued in the name of defendant No.2. 4. On 4.8.2009, the Civil Judge, Junior Division, Soygaon framed the issues, evidence has been led by the parties on 13.4.2010. The Civil Judge, Junior Division, Soygaon ordered the plaintiffs on 11.5.2010 to revalue the suit and to pay the requisite court fees according to Section 6 (iv)(ha) of the Bombay Court Fees Act. Therefore, this writ petition is filed challenging the said order passed by the Civil Judge, Junior Division, Soygaon in Regular Civil Suit No.2/2009. 5. The learned counsel appearing for the petitioners submits that, the plaintiffs/ petitioners herein sought the relief that the sale deed dated 8.1.2003 is not binding on them. The plaintiffs/ petitioners have not sought the relief of cancellation of the said sale 4 W.P. No.6722/2010 deed. The learned Judge has assumed the application of Section 6(iv)(ha) of the Bombay Court Fees Act, 1959 and ordered to revalue the suit according to the market value stated in the sale deed on assumption that the plaintiffs are seeking cancellation of the sale deed. Therefore, according to the learned counsel for the petitioners, the relief claimed by the plaintiffs/ petitioners is not for the cancellation of the sale deed. It is further submitted that, the petitioners/ plaintiffs are not the executants of the sale deed dated 8.1.2003. The defendant No.2 has executed the sale deed dated 8.1.2003 in favour of defendant No.1. It ought to have been seen that, there is basic difference between the prayer of cancellation of sale deed and the prayer that the sale deed is not binding. It ought to have been seen 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 non-est, or illegal or that it is not binding on him. Thus, the judgment and order of the Court below is legally unsustainable and liable to be quashed and set aside. The plaintiffs are not party to the sale transaction, therefore, it ought to have been seen that the Court fee payable on the relief sought by the plaintiff is correctly valued by them and the provisions of Section 6(iv)(ha) of the Bombay Court Fees Act, 1959 are not attracted to the present case. It is further submitted that, the 5 W.P. No.6722/2010 market value mentioned in the sale deed dated 8.1.2003 does not bear any importance in the light of the pleading in the plaint and the reliefs sought by the plaintiffs, it is the contention of the petitioners that, the judgment and order impugned in this writ petition cannot be sustained. Hence, the writ petition may be allowed. 6. Though the respondents are served, none appears for them. 7. Since the short point is involved in this writ petition, the petition is finally heard at the admission stage. 8. The provisions of Section 6(iv)(ha) of the Bombay Court Fees Act, 1959 reads as under : “ . . . . . . . . . . . . (ha). for avoidance of sale, contract for sale, etc. In suits for declaration that any sale, or contract for sale or termination of contract for sale, of any moveable or immoveable property is void – one half of ad valorem fee leviable on the value of the property.” 9. Reading of the above mentioned provision would make it clear that, if the suit is for declaration that any sale or contract for sale or termination of contract for sale, of any moveable or 6 W.P. No.6722/2010 immovable property is void, in that case, one half of ad valorem fee leviable on the value of the property is required to be paid. 10. The petitioners have placed on record plaint of Regular Civil Suit No.2/2009. The perusal of the prayers in the said suit would make it clear that, the prayer (a) is for possession, prayer (b) is that, in case defendants do not hand over the possession, in that case, the possession may be given to the plaintiffs through Court Commissioner or through bailiff. The prayer clause (c) is that, the sale deed executed by defendant Nos.1 and 2 on 8.1.2002 is bogus and same is not binding upon the plaintiffs/ petitioners and further prayer is that, cost of the suit should be ordered to be recovered from the defendants any any other relief in the interest of justice may be granted in favour of the plaintiffs. 11. The Hon’ble Supreme Court, in case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh & ors., reported in 2010 ALL SCR 1027, had occasion to interprete provisions of Section 7(iv) (c) of the Court Fees Act, 1870. The Court Fees in the State of Punjab is governed by the said Act. The said Act provides that, if the suit is for delcaration and consequential relief of possession of injunction, Court fees thereon is governed by Section 7(iv)(c) of the Act, which provides:- 7 W.P. No.6722/2010 “7. Computation of fees payable in certain suits: The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows : (iv) In suits – x x x x x (c) for a declaratory decree and consequential relief.-- to obtain a declaratory decree or order, where consequential relief is prayed. x x x x x x according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. In all such suits the plaintiff shall state the amount at which he values the relief sought. Provided that minimum court-fee in each shall be thirteen rupees. Provided further that in suits coming under sub- clause (c), in cases where the relief sought 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 this section.” In para 6, the Court has observed that:- “Where the executant of a deed wants it to be annuled, he has to seek cancellation of the deed, but if a non-executant seeks annulment of the 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 prayer of cancellation and declaration in regard to 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 8 W.P. No.6722/2010 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. 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 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. (Emphasis supplied) 12. The Supreme Court has made it clear that, if 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. But if the person who is a non executant, is in possession and sues for a declaration that the deed is null and void and does not bind him and his share, he has to merely pay a fixed court fee. Further, a non executant, who is not in possession and if he seeks not only a declaration that the sale deed is invalid but also consequential 9 W.P. No.6722/2010 relief of possession, he has to pay d valorem court fee as provided under Section 7(iv)(c) of the said Act. The Supreme Court has interpreted the said provision and recorded the conclusion that the proviso to the said section makes it clear 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 5 of Section 7 in the said Act. 13. In the present case, the petitioners/ plaintiffs are non executant of the sale deed and not in possession of the suit property, sought relief that the sale deed is invalid and not binding on them, and also consequential relief of possession, therefore, they have to pay ad valorem court fees as provided under Section 6(iv)(ha) of the said Act, therefore, the trial Court was correct in directing the plaintiffs to revalue the suit and to pay requisite court fee according to Section 6(iv)(ha) of the Bombay Court Fees Act. In the light of discussion hereinabove, the impugned order dated 11.5.2010, passed by the Civil Judge, Junior Division, Soygaon in Regular Civil Suit No.2/2009 needs no interference. The Writ Petition is devoid of any merits, same stands rejected. ( S.S. SHINDE, J. )