Heard Sri Divakar Rai Sharma, learned counsel for the revisionist.
The respondent first set filed Original Suit No.643 of 2007 in which the revisionist was defendant first set and the respondent no.4 was defendant second set. In the said suit the relief sought was for a decree of declaration declaring the impugned sale deed dated 19.05.2007 alleged to be executed by the defendant second set in favour of the defendant first set in respect of the land as null and void and further for a decree for permanent prohibitory injunction restraining the defendants from creating any kind of interference in peaceful possession of the plaintiff.
It is alleged that the plaintiffs are owners and are in possession of land situated at village Kuarsi, which is integral part of plot no.275Gha. It is alleged that late Asha Ram was bhumidhar of various agriculture plots including plot nos.275Gha and 276 Gha and after the death of Asha Ram his three sons inherited the entire estate left by deceased including the aforesaid land. After the death of Asha Ram, his three sons, namely Sri Shanti, Sri Babu Lal and Sri Triloki made a family settlement and they divided the entire estate of Sri Asha Ram. Sri Triloki who inherited the land comprised in plot nos.252Ga, 260Gha, 271Kha, 272Ga, 275Gha, 276Kha, 279Kha and 280Ga upto the extent of his one third share and he transferred his entire share to various persons. Sri Natthi also transferred the land upto the extent of his one third share to different persons specifically his share comprised in plot no.276Ga, i.e. one third share to Sri Shakum Singh, son of Sri Ram Pal Singh by means of registered sale deed dated 23.04.2004 and his name was also struck off from the revenue record vide order dated 20.05.2006 by the court of Tehsildar Koil, Aligarh in mutation proceeding. Sri Natthi prior to 23.04.2004 transferred his entire land to different persons and the remaining entire land which he obtained in an oral family settlement was also transferred on 23.04.2004. Sri Natthi had nothing to do for many parts of the land comprised in plot nos.252Ga, 260 Gha, 271Kha, 272Ga, 275Gha, 279Kha and 280Ga on 19.05.2007 as he has also alienated entire share of the said land through the different sale deeds hence he has no right at all to execute the sale deed dated 19.05.2007 in favour of defendant first set. It was alleged that the defendant second set and defendant first set being in collusion with each other manufactured a forged sale deed dated 19.05.2007 by defendant second set in favour of defendant first set without any sale consideration. The sale deed dated 19.05.2007 is void document and sought decree that the sale deed dated 19.05.2007 executed by the defendant second set in favour of defendant first set be declared null and void.
The defendant filed written statement as well as reply to the injunction application. In the written statement it has been categorically stated that Natthi had transferred the land except land in question and also filed the affidavit that Natthi had no right or title over the land in his favour. Apart from the other relief, it is stated that the plaintiffs are not in possession over the land in question. They never tried to dispossess the plaintiff as they are totally out of possession and have no concern over the disputed property. It was also objected that the court fee has not been paid and in this regard application under Order 7 Rule 11 C.P.C. was filed. It was contended that in effect, essence and substance of the suit is cancellation of the sale deed but the plaintiff sought relief of cancellation of sale deed and to avoid the demand of court fee. The reliefs have been twisted to a relief of declaration and plaintiff have paid advalorem court fee. By means of the impugned order dated 21.01.2011 the trial court has dismissed the application. Hence the present writ petition.
Learned counsel for the revisionist submitted that the suit in effect is for cancellation of sale deed and, therefore, the advalorem court fee is payable under Section 7 of the Court Fees Act.
The trial court has held that the plaintiffs seek for the declaration of the sale deed as null and void and for permanent injunction and the plaintiffs are in possession of the property in dispute and they were not the party of the sale deed and, therefore, the court fee is payable under Schedule 2 Article 17(3) and the court fee at Rs.200/- held to be sufficient.
I do not find any substance in the argument of learned counsel for the petitioner. In the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh arising out of SLP (C) Nos.6745-47/2009, decided on 23.03.2010 reported in 2010 (TLS) 50680, the Apex Court held as follows:
"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 be 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) 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."
The Apex Court categorically held that if the plaintiff is 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 under Article 17 (iii) of Second Schedule of the Act.
In the present case, the court below found that the suit is for declaration of sale deed null and void and the plaintiff is in possession of the property in dispute and was not the party of the sale deed. In view of the law laid down by the Apex Court the court fee is payable under under Article 17 (iii) of Second Schedule of the Act. The trial court has rightly held so.
In the result, the revision has no substance and is accordingly, dismissed.
Dt.31.03.2011 R./