israt Jahan (Smt.) Vs. Rajia Begum and ors. - Court Judgment

Excerpt:
- madhya pradesh municipal corporation act (23 of 1956)section 91 & m.p. municipal corporation act (1956), section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k.seth, jj] public nuisance - suit for injunction - held, section 91(i) of the c.p.c. is not exhaustive of the remedies that are available to a party even in case of a public nuisance or other wrongful act affecting or likely to affect the public. the remedy of the corporation and any other person under sub-section (5) of section 307 of the act of 1956 is independent of the provisions of section 91 of the c.p.c. and not only the corporation but any other person can apply to the district court for injunction or removal or alteration of a building on the ground that the provisions of the act of 1956 or the bye-laws made thereunder have been contravened. sections 41(j) & 4 & m.p. municipal corporation act (1956), section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k. seth, jj] relief of injunction held, the reliefs under the specific relief act, 1963 are granted for the purpose of enforcing individual civil rights as will be clear from section 4 of the specific relief act. 1963. accordingly, injunction under part iii of the specific relief act, 1963 is granted to the plaintiff either to prevent a breach of an obligation in favour of the plaintiff, or to compel the performance of an obligation in his favour. unless, therefore, there is an obligation in favour of the plaintiff which needs to be enforced, the court cannot grant injunction. hence, it is provided in section 41(j) of the specific relief act. 1963 that an injunction cannot be granted when the plaintiff has no personal interest in the matter. the provisions of the specific relief act, 1963 do not apply to the right conferred on the corporation and any other person under sub-section (5) of section 307 of m.p. municipal corporation act, 1956. under the provisions of the act of 1956, every building must comply with the provisions of the act of 1956 and the byelaws made thereunder and hence if there is any breach of the provisions of the act of 1956 or the bye-laws made thereunder, sub-section (5) of section 307 of the act of 1956 confers a right not only on the corporation but also any other person to apply to the district court for an injunction for removal or alteration of a building on the ground that there has been the contravention of the provisions of the act of 1956 or the bye-laws made thereunder. this remedy under sub-section (5) of section 307 of the act of 1956 is independent of and different from the remedies under the specific relief act. 1963. section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k. seth,jj] injunction for removal or alternation of any building-locus standi to claim - held, the word any which has diverse meanings, therefore, has to be interpreted depending on the context and the subject matter of statute in which it is used. there are various other provisions in the act of 1956 and the byelaws made thereunder relating to buildings within the area of the corporation which have to be complied with. legislature has., therefore, to provide for some remedy if the provisions of the act of 1956 or the byelaws thereunder in respect of a building are violated. it is only for this reason that under sub-section (5) of section 307 of the act of 1956, a right has been conferred not only on the corporation but on any other person to apply to the district court for injunction for removal of a building or alteration of any building on the ground that it contravenes any provisions of the act or the byelaws made thereunder. hence, not only the corporation but every other person has been given the right to apply to the district court for injunction for the removal or alteration of any building on the ground that it contravenes any provisions of the act or the byelaws made thereunder. the context and the subject-matter of the statute in which the word any has been used is thus, wide enough to include all persons other than the corporation or every other person other than the corporation or any other person other than the corporation. - he was an old person with weak eye sight and weak mental faculty. 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.orderabhay m. naik, j.1. this writ petition is preferred under article 227 of the constitution of india against the order dated 13-8-2008 passed by the court of district judge, vidisha, in civil suit no. 2-a/08.2. short facts involved herein are that the plaintiff/respondent nos. 1 to 7 instituted a suit against defendant/petitioner and defendant/respondent no. 8 with the allegation that their predecessor namely, sabdar hussain (husband of plaintiff no. 1 and father of plaintiff nos. 2 to 7) was owner of the suit property to the extent of one half. he was an old person with weak eye sight and weak mental faculty. a registered sale deed dated 24-4-2007 was got executed from him by the defendant/petitioner in respect of his share in the disputed land. sale deed was for consideration of rs. 5,64,400/-, out of which rs. 2 lacs was shown to have been paid in advance. it was alleged that the consideration was not paid at all and the registered sale deed was got executed in collusion with the sub registrar. accordingly, a declaration has been sought that the registered sale deed dated 24-4-2007 is illegal and void. possession and mesne profit are also prayed for.3. defendant/petitioner submitted an application under order 7 rule 11, cpc that the plaintiffs may be directed to pay ad valorem court fees on rs. 5,64,400/- being valuation of the sale deed.4. learned trial judge dismissed the application by the impugned order holding that the plaintiffs were not party to sale-deed and they cannot be directed to pay ad valorem court fees on the valuation of the sale deed. this order has been challenged in the present writ petition.5. learned counsel for the parties argued at length.6. admittedly, the suit has been valued for the purpose of declaration at rs. 5,64,400/- being the valuation of the sale-deed in question, which was executed by sabdar hussain, husband of the plaintiff no. 1 and father of plaintiff nos. 2 to 7. property in question belonged to him. thus, he was quite competent to execute the sale deed. plaintiffs are bound by the sale deed unless the same is avoided. although the relief clause is couched in declaratory form, the relief sought by the plaintiffs shall have the effect on cancelling/avoiding it. thus, it is governed by clause (c) of section 7 (iv) of the court fees act, 1870 and an ad valorem court fees is payable as setting aside the sale deed dated 24-4-2007 is implicit in the declaratory relief sought by the plaintiffs.7. we may successfully refer to the apex court's decision in the case of shamsher singh v. rajinder prashad and ors. air 1973 sc 2364. in the shamsher 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 ors. v. gyan sunder bai and ors. 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-fees has to be determined under section 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 ors. 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 kamalkishore v. jagannath prasad, reported in 2005 (2) mpwn 43.12. reliance by shri d.d. bansal on bhikam chandra v. ghichi bai 1999 (ii) mpwn 136; ambaram v. smt. pramilabai and ors. 1997 (1) jlj 136; varud ahmed v. nihal ahmed 1996 (i) mpwn 235; omprakash and ors. v. suratram and ors. 1993 (1) vibha 259 and laxmikant dube v. smt. piyaria : 2002(1) m.p.h.t. 133 : 2002 (2) mpu 44, are of no assistance because in none of these cases, plaintiff was bound by the deed.13. contrary to this, it is found in the present case that according to the plaint averments themselves, the suit property was owned by sabdar hussain, who was husband of plaintiff no. 1 and father of plaintiff nos. 2 to 7. it allegedly devolved upon the plaintiffs after death of sabdar hussain. in case, if the registered sale deed executed by sabdar hussain on 24-4-2007 is not avoided, the suit property cannot be treated as available for devolution on plaintiffs. thus, it is obligatory on the part of plaintiffs to seek the cancellation or avoidance of the said sale deed. although relief clause is couched in declaratory form, the relief of avoidance and/or cancellation is implied in the declaratory relief contained in plaint. this being so, the case of the plaintiff is found squarely covered by the apex court decision in the case of shamsher singh (supra). the impugned order is thus not found sustainable in law. the same is hereby set aside. plaintiffs are directed to pay ad valorem court fees on the valuation of the sale deed. trial court shall grant reasonable time to pay the deficit court fees before proceeding further on merits in accordance with law. petition stands allowed in the aforesaid manner.no orders as to costs.

Judgment:
ORDER

Abhay M. Naik, J.

1. This writ petition is preferred under Article 227 of the Constitution of India against the order dated 13-8-2008 passed by the Court of District Judge, Vidisha, in Civil Suit No. 2-A/08.

2. Short facts involved herein are that the plaintiff/respondent Nos. 1 to 7 instituted a suit against defendant/petitioner and defendant/respondent No. 8 with the allegation that their predecessor namely, Sabdar Hussain (husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 7) was owner of the suit property to the extent of one half. He was an old person with weak eye sight and weak mental faculty. A registered sale deed dated 24-4-2007 was got executed from him by the defendant/petitioner in respect of his share in the disputed land. Sale deed was for consideration of Rs. 5,64,400/-, out of which Rs. 2 lacs was shown to have been paid in advance. It was alleged that the consideration was not paid at all and the registered sale deed was got executed in collusion with the Sub Registrar. Accordingly, a declaration has been sought that the registered sale deed dated 24-4-2007 is illegal and void. Possession and mesne profit are also prayed for.

3. Defendant/petitioner submitted an application under Order 7 Rule 11, CPC that the plaintiffs may be directed to pay ad valorem Court fees on Rs. 5,64,400/- being valuation of the sale deed.

4. Learned Trial Judge dismissed the application by the impugned order holding that the plaintiffs were not party to sale-deed and they cannot be directed to pay ad valorem Court fees on the valuation of the sale deed. This order has been challenged in the present writ petition.

5. Learned Counsel for the parties argued at length.

6. Admittedly, the suit has been valued for the purpose of declaration at Rs. 5,64,400/- being the valuation of the sale-deed in question, which was executed by Sabdar Hussain, husband of the plaintiff No. 1 and father of plaintiff Nos. 2 to 7. Property in question belonged to him. Thus, he was quite competent to execute the sale deed. Plaintiffs are bound by the sale deed unless the same is avoided. Although the relief clause is couched in declaratory form, the relief sought by the plaintiffs shall have the effect on cancelling/avoiding it. Thus, it is governed by clause (c) of Section 7 (iv) of the Court Fees Act, 1870 and an ad valorem Court fees is payable as setting aside the sale deed dated 24-4-2007 is implicit in the declaratory relief sought by the plaintiffs.

7. We may successfully refer to the Apex Court's decision in the case of Shamsher Singh v. Rajinder Prashad and Ors. AIR 1973 SC 2364. In the Shamsher 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 Ors. v. Gyan Sunder Bai and Ors. 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-fees has to be determined under Section 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 Ors. 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 Kamalkishore v. Jagannath Prasad, reported in 2005 (2) MPWN 43.

12. Reliance by Shri D.D. Bansal on Bhikam Chandra v. Ghichi Bai 1999 (II) MPWN 136; Ambaram v. Smt. Pramilabai and Ors. 1997 (1) JLJ 136; Varud Ahmed v. Nihal Ahmed 1996 (I) MPWN 235; Omprakash and Ors. v. Suratram and Ors. 1993 (1) Vibha 259 and Laxmikant Dube v. Smt. Piyaria : 2002(1) M.P.H.T. 133 : 2002 (2) MPU 44, are of no assistance because in none of these cases, plaintiff was bound by the deed.

13. Contrary to this, it is found in the present case that according to the plaint averments themselves, the suit property was owned by Sabdar Hussain, who was husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 7. It allegedly devolved upon the plaintiffs after death of Sabdar Hussain. In case, if the registered sale deed executed by Sabdar Hussain on 24-4-2007 is not avoided, the suit property cannot be treated as available for devolution on plaintiffs. Thus, it is obligatory on the part of plaintiffs to seek the cancellation or avoidance of the said sale deed. Although relief clause is couched in declaratory form, the relief of avoidance and/or cancellation is implied in the declaratory relief contained in plaint. This being so, the case of the plaintiff is found squarely covered by the Apex Court decision in the case of Shamsher Singh (supra). The impugned order is thus not found sustainable in law. The same is hereby set aside. Plaintiffs are directed to pay ad valorem Court fees on the valuation of the sale deed. Trial Court shall grant reasonable time to pay the deficit Court fees before proceeding further on merits in accordance with law. Petition stands allowed in the aforesaid manner.

No orders as to costs.