Edward Meganji and Others Vs. Sultan Singh and Others - Court Judgment

Excerpt:
constitution of india - article 227 - m.p. land revenue code - section 165 - court fees act - section 7(iv)(c) - petitioner has filed the suit for declaring the sale deed as null and void with a further relief of permanent injunction and possession - owner of the property, had executed the sale deed in favour of the defendants no.1 and 2 without obtaining the permission of the collector and without receiving any sale consideration - petitioners are claiming to be the brothers and brother s son of owner of the property - owner of the property had died issueless - trial court held that the petitioner-plaintiff is liable to pay the ad valorem court fee on the suit valuation - plaintiff challenged the order of the trial court held that owner of the property through whom the petitioners are claiming, was the executant of the sale deed and the petitioners have not claimed to be in possession of the property and they have prayed for a consequential relief of possession, therefore, they are liable to pay ad valorem court fee - trial court has rightly observed that the validity of sale is subject matter of the trial of the suit - petition is dismissed. cases referred: suhrid singh @ sardool singh vs. randhir singh and others reported in air 2010 sc 2807 israt jahan (smt.) vs. rajia begum and others reported in ilr 2009 mp 3017 shamsher singh v. rajinder prashad and others (air 1973 sc 2364) santosh chandra and others v. gyan sunder bai and others (1970 jlj 290), manoharlal v. vedahisharan and others [1995(1)] vibha 148, 2005 (2) mpwn 43 (kamalkishore v. jagannath prasad) 1999 (ii) mpwn 136 (bhikam chandra v. ghichi bai), 1997 (1) jlj 136 (ambaram v. smt. pramilabai and others), 1996 (i) mpwn 235 (varud ahmed v. nihal amhed), 1993 (1) vibha 259 (omprakash and others v. suratram and others) 2002 (2) mplj 44 (laxmikant dube v. smt piyaria) sunil radhelia and others vs. avadh narayan and others reported in 2011(1) jlj 71 farooq vs. prahalad and another reported in 2011 rn 313. comparative citation: 2014 air(noc) 554, 1. this writ petition under article 227 of the constitution of india is at the instance of the plaintiff in the suit challenging the order of the trial court dated 19.9.2013 passed in c.s. no.17-a/2010 deciding the preliminary issue about valuation of the suit, court fee and jurisdiction. 2. the trial court by the order under challenge has held that the petitioner-plaintiff is liable to pay the ad valorem court fee on the suit valuation. 3. learned counsel appearing for the petitioner submits that since the petitioner has alleged in the plaint that the sale deed was executed by badri in violation of section 165 of the m.p. land revenue code and the sale deed was without consideration, therefore, the petitioner is not liable to pay the ad valorem court fee. 4. as against this, learned counsel appearing for the respondent has submitted that since the petitioner is claiming through badri who had executed the sale deed and the petitioner is not in possession of the suit land, therefore, he is liable to pay ad valorem court fee. he has supported the impugned order of the trial court. 5. i have heard the learned counsel for the parties and perused the record. 6. the record reveals that the petitioner has filed the suit for declaring the sale deed as null and void with a further relief of permanent injunction and possession. the allegation of the petitioner is that badri who was the owner of the property, had executed the sale deed in favour of the defendants no.1 and 2 without obtaining the permission of the collector and without receiving any sale consideration. the petitioners are claiming to be the brothers and brother s son of badri and according to them, badri had died issueless. 7. the trial court while passing the impugned order has noted that the plea about the sale being without permission of the collector, is subject matter of evidence and in respect of the plea that the sale deed was executed without sale consideration, it is noted that, in the sale deed the consideration has been mentioned, therefore, the prima facie presumption is in respect of payment of consideration, and the contrary averment is subject matter of evidence. it has further been noted by the trial court that the petitioners are claiming through badri who had executed the sale deed, therefore, the said sale deed is binding on them and, therefore, they are liable to pay ad valorem court fee on the suit valuation. the reasons which the trial court has assigned for reaching to the conclusion that the petitioners are liable to pay ad valorem court fee, are just and proper and no error has been committed by the trial court in this regard. the supreme court in the matter of suhrid singh @ sardool singh vs. randhir singh and others reported in air 2010 sc 2807 has considered the circumstances by way of example as to when the ad valorem court fee is payable, by holding as under :- 6. 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 the deed set aside or declared as nonbinding. 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. 8. in the present case also, badri through whom the petitioners are claiming, was the executant of the sale deed and the petitioners have not claimed to be in possession of the property and they have prayed for a consequential relief of possession, therefore, they are liable to pay ad valorem court fee as provided under section 7(iv)(c) of the court fees act. 9. the division bench of this court has considered the similar circumstances in the matter of israt jahan (smt.) vs. rajia begum and others reported in ilr 2009 mp 3017 and taking note of the earlier judgment of the supreme court, has held as under :- 7. we may successfully refer to the apex court's decision in the case of shamsher singh v. rajinder prashad and others (air 1973 sc 2364). in the samsher singh's case (supra), the plaintiff has prayed for declaration that the mortgage deed executed by the father in respect of joint family property was null and void for want of legal necessity and consideration. the apex court observed that although the relief was couched in a declaratory form, the same was in substance a suit either for setting aside the decree or for a declaration with a consequential relief of injunction restraining the decree holder from executing the decree against the mortgaged property. it was further found that unless the decree was set aside, it would have remained executable against the son and it was essential for the son to ask for setting aside the decree. likewise in the present case, if the sale deed executed by the sabdar hussain is not avoided, it will remain binding on the plaintiffs, who would not inheritate the property. 8. shri bansal, learned counsel appearing for the respondents relied upon full bench decision of this court in the case of santosh chandra and others v. gyan sunder bai and others (1970 jlj 290), wherein it is observed :- thus, all these cases lay down the proposition that where it is necessary for a plaintiff to avoid an agreement or a decree or a liability imposed, it is necessary for him to avoid that and unless he seeks the relief of having that decree, agreement, document or liability set aside, he is not entitled to a declaration simpliciter. in such cases the question of court fee has to be determined under s.7(iv)(c) of the act. but, however, where a plaintiff is not a party to such a decree, agreement, instrument or a liability, and he cannot be deemed to be a representative in interest of the person who is bound by that decree, agreement, instrument or liability, he can sue for a declaration simpliciter, provided he is also in possession of the property. even in the aforesaid full bench view, the plaintiffs being successor of sabdar hussain are bound by the sale deed executed by him. thus, the full bench decision does not render any assistance to the contesting respondents. 9. learned trial judge has passed the impugned order in favour of the plaintiffs on the ground that the plaintiffs were not party to the said sale deed. learned trial judge has failed to consider that the plaintiffs are claiming the suit property from sabdar hussain, who has executed the registered sale deed in question. thus, they represent the estate of sabdar hussain and in absence of avoidance of the registered sale deed, they would remain bound by the same. it is not a case where the plaintiffs claimed the suit property independent of sabdar hussain. thus, without avoiding the sale deed executed by the sabdar hussain, no relief would be available to the plaintiffs. this being so, they are bound to pay the ad valorem court fees." 10. this court in the case of manoharlal v. vedahisharan and others [1995(1)] vibha 148, has after taking into consideration various authorities observed :- (i) where a party seeks to avoid a deed or a decree to which he is party, then ad valorem court-fees is payable. (ii) where substance of the relief is either for setting aside the decree or for a declaration with a consequential relief for cancellation or restraining then, ad valorem court-fees is payable. . 11. at the cost of repetition, it is reiterated that the plaintiffs having claimed the suit property from sabdar hussain are bound to avoid the sale deed dated 24.4.2007 and the learned trial judge has thus erred in holding contrary. we may successfully refer on this point other decision of this court reported in 2005 (2) mpwn 43 (kamalkishore v. jagannath prasad). 12. reliance by shri d.d. bansal on 1999 (ii) mpwn 136 (bhikam chandra v. ghichi bai), 1997 (1) jlj 136 (ambaram v. smt. pramilabai and others), 1996 (i) mpwn 235 (varud ahmed v. nihal amhed), 1993 (1) vibha 259 (omprakash and others v. suratram and others) and 2002 (2) mplj 44 (laxmikant dube v. smt piyaria) are of no assistance because in none of these cases, plaintiff was bound by the deed. 13. counsel for the petitioners has placed reliance upon the full bench judgment of this court in the matter of sunil radhelia and others vs. avadh narayan and others reported in 2011(1) jlj 71 but that does not deal with the fact situation existing in the present case, therefore, it is distinguishable on its own fact. counsel for the petitioners has also placed reliance upon the single bench judgment of this court in the matter of farooq vs. prahalad and another reported in 2011 rn 313 but that is not a judgment on the issue of court fee, but it is a judgment relating to the right to transfer the land without permission of the collector. in this regard, the trial court has rightly observed that the validity of sale is subject matter of the trial of the suit . 14. in these circumstances, it is found that the order which is passed by the trial court, is just and proper and no case for interference in the present writ petition is made out. the writ petition is accordingly dismissed.