C.R.No.7309 of 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.7309 of 2010 Date of decision: 07.11.2011 Smt.Santosh ...Petitioner Versus Smt.Rajbala and others ... Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. Harkesh Manuja, Advocate for the petitioner. Mr. Parmod Parmar, Advocate for the respondents. Ajay Kumar Mittal,J. 1. The plaintiff-petitioner having been directed to affix ad- valorem court fee on the value of the property as described in sale deed dated 5.2.2007 executed by respondent No.1 in favour of respondent No.2 by the trial court on an application filed by the respondents under Order 7 Rule 11 of the Code of Civil Procedure (in short, “the Code”), vide order dated 28.9.2010, has approached this Court through the instant revision petition. 2. Brief facts as narrated in the petition may be noticed. Gindori Devi was owner of the suit property. Respondent No.1 got executed a power of attorney in her favour from Gindori Devi fraudulently and on the basis thereof, sale deed regarding the suit land was got executed by respondent No.1 in favour of her real daughter i.e. respondent No.2 on 5.2.2007. Respondent No.1 is sister-in-law of Gindori Devi. On the other hand, Gindori Devi had executed a registered Will dated 5.2.2007 in favour of the present petitioner who is her real daughter-in-law. Having come to know about the power of attorney as well as sale deed dated 5.2.2007 by 1 C.R.No.7309 of 2010 respondent No.1 in favour of respondent No.2, the petitioner filed suit for declaration claiming herself to be owner of the suit property on the basis of registered Will dated 5.2.2007 as well as challenging sale deed dated 5.2.2007. The petitioner claimed to be in possession of the suit property. During pendency of the suit, respondent No.1 filed an application for affixation of ad-valorem court fee on the sale consideration i.e. Rs.7,50,000/- as mentioned in the sale deed. The petitioner has denied the claim made by the respondent. The trial court vide impugned order dated 28.9.2010 has directed the petitioner to affix ad-valorem court fee as per the value of the property mentioned in the sale deed. Hence this revision petition. 3. Learned counsel for the petitioner submitted that the Apex court in Suhrid Singh @ Sardool Singh v. Randhir Singh and Ors., AIR 2010 SC 2807 had held that where the plaintiff was not a party to the sale deed and had only claimed a declaration with consequential relief which did not relate to possession, fixed court fee was liable to be affixed on the plaint. It was next contended that the suit land being agricultural land, the court fee was required to be paid under Section 7(iv) (c) as quantified under section 7(v) of the Court Fee Act, 1870 as amended vide Haryana Court Fees Amendment Act 22 of 1974. 4. Opposing the prayer made by the plaintiff-petitioner, learned counsel for the defendant-respondent besides supporting the order passed by the trial court submitted that the plaintiff was not in possession and the suit primarily was for declaration with consequential relief of possession which would flow from declaration. If possession is not claimed, then de- claratory suit without relief of possession was not maintainable in view of Section 34 of the Special Relief Act, 1963 (in short “the 1963 Act”). It was further submitted that the averment that plaintiff was in possession of the property in dispute as narrated in the plaint was an attempt to avoid pay- 2 C.R.No.7309 of 2010 ment of ad-valorem court fees as plaintiff had no right in the property dur- ing the life time of Smt.Gindori Devi and could not be in possession of suit land at Narnaul when she was residing in District Bhiwani. The claim of the plaintiff-petitioner with regard to payment of court fee under Section 7(v) of the Court Fees Act as amended vide Haryana Court Fees Amendment Act 22 of 1974 was controverted by urging that no such plea was raised be- fore the trial court as the said provisions were not attracted. 5. After giving my thoughtful consideration to the respective submissions of learned counsel for the parties, I find merit in the contention of the learned counsel for the respondent. 6. The Apex Court in Suhrid Singh @ Sardool Singh v. Ran- dhir Singh and others, AIR 2010 SC 2807 had laid down the following principles relating to payment of court fees on cancellation of a deed:- i) Where the executant of the deed seeks cancellation of the deed, he has to pay ad-valorem Court fee on the consideration stated in the deed; ii) Where the non-executant, who is in possession and sues for a declaration that the deed is null or void and does not bind him or his share shall be required to affix fixed court fee of Rs.19.50 under Article 17(iii) of the Second Schedule of the Act; iii) Where the non-executant who is not in possession seeks declaration that the deed is invalid and also claim relief of possession, is required to affix ad-valorem Court fee as pro- vided under Section 7(iv)(c) of the Act. Under the Proviso at- tached thereto, such valuation in case of property shall not be less than the value of the property calculated in the manner provided for by Clause (v) of Section 7 of the Act. 7. In so far as cases falling in category (i) and (iii) are con- cerned, it is amply clear that an executant of a deed who seeks cancellation 3 C.R.No.7309 of 2010 of that deed or where non-executant who is not in possession seeks cancel- lation of deed with consequential relief of possession is required to affix ad- valorem court fee. However, in cases under (ii) where a non-executant of the deed who is in possession of the property in dispute seeks cancellation of deed, fixed court fee under the Court Fees Act is exigible. 8. The cases where the non-executant of the deed seeks its can- cellation and claims to be in possession of the property in dispute, the mat- ter requires deeper scrutiny in view of Section 34 of the 1963 Act. 9. It would be expedient to examine Section 34 of the 1963 Act, which reads thus:- “Section 34. Discretion of Court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a dec- laration that he is so entitled and the plaintiff need not in such suit ask for any further relief. Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere dec- laration of title, omits to do so. Explanation.- A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in ex- istence, and whom, if in existence, he would be a trustee.” 10. For grant of specific relief of declaration or injunction in a suit under Section 34 of the 1963 Act, the following conditions are required to be fulfilled:- “(i) the plaintiff must be a person entitled to any legal charac- ter or to any right as to any property; 4 C.R.No.7309 of 2010 (ii) the defendant must be a person denying, or interested to deny, the plaintiff's title to such character or right; (iii) the declaration sued for must be a declaration that the plaintiff is entitled to a legal character or to a right to property; and (iv) where the plaintiff is able to seek further relief than a mere declaration of title, he must seek such relief.” 11. The aforesaid conditions enumerated hereinabove are re- quired to be fulfilled and in case of failure to fulfil the same, the suit is li- able to be dismissed. Thus, where the plaintiff who is not in possession seeks declaration without claiming the relief of possession, the suit would not be maintainable under Section 34 of the 1963 Act. 12. For ascertaining whether the plaintiff is in possession of suit property or not, the reading of the plaint is essential. The Court in adjudicat- ing the question of court fee is required to look into the allegations in the plaint so as to discern the substantive relief asked for. Mere astuteness in drafting the plaint will not absolve the plaintiff from the requirement of payment of ad-valorem court fee. In other words, it is essential to indicate the manner of acquiring possession of the disputed property. The Court is empowered to see the actual intent of or the averments made therein even though the plaint may be couched in the words which claims that the plain- tiff is in possession which may be with an endeavour to avoid payment of ad valorem court fee and cause loss to the State. No doubt, at the stage of deciding an application under Order 7 Rule 11 of the Code for rejection of plaint for want of requisite court fee, trial court is not required to adjudicate regarding the maintainability of the suit in terms of Section 34 of the 1963 Act but at the same time, for ascertaining the quantum of court fees re- quired to be affixed, the tenor of the plaint has to be judged. 5 C.R.No.7309 of 2010 13. Adverting to the facts of the present case, the plaintiff-peti- tioner is the real daughter-in-law of Gindori Devi. The challenge in the suit is to power of attorney executed in the year 1999 by Gindori Devi in favour of defendant respondent No.1 who in turn executed sale deed relating to suit property in favour of her real daughter defendant-respondent No.2 on 5.2.2007. The ground of challenge of sale deed is fraud. The plaintiff-peti- tioner has laid a claim only on the basis of registered Will dated 5.2.2007 executed by Gindori Devi in her favour. The property in dispute being own- ership of Gindori Devi which as per averments in the plaint is situated at Narnaul could not ordinarily be in the possession of the plaintiff-petitioner. In the absence of any explanation `relating to the manner in which she en- tered possession of suit property at Narnaul under the facts and circum- stances, the bald averment of the plaintiff regarding possession without there being any specific assertion suggesting as to how, when and in what manner the plaintiff entered possession of the property in dispute could not be sufficient to prima facie establish possession of the plaintiff. There be- ing no prima facie material to suggest as to how the plaintiff has acquired possession, the fixed court fee affixed by the plaintiff-petitioner was not correct. The trial court was, thus, justified in allowing the application filed under Order 7 Rule 11 of the Code filed by the defendants and directing the plaintiff to affix ad-valorem court fee on the value of the suit property. Fur- ther, the plea that the plaintiff-petitioner was required to affix court fee un- der Section 7(v) of the Court Fees Act as per Haryana Court Fees Amend- ment Act 22 of 1974, the same does not come to the rescue of the petitioner as nothing has been averred to show that the essential ingredients required thereunder were fulfilled in the present case. 14. In view of the above, there is no merit in this revision petition and the same is hereby dismissed. 6 C.R.No.7309 of 2010 November 07, 2011 (Ajay Kumar Mittal) ‘gs’ Judge 7