Shashank Chaudhary And Another vs Sri Bijendra Singh And Another
2023 Latest Caselaw 3866 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 37
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 393 of 2023
 

 
Petitioner :- Shashank Chaudhary And Another
 
Respondent :- Sri Bijendra Singh And Another
 
Counsel for Petitioner :- Ashok Kumar Singh Bais
 

 
Hon'ble Ajit Kumar,J.

Heard Sri Ashok Kumar Singh Bais, learned counsel for the petitioners.

By means of this petition filed under Article 227 of the Constitution, petitioners are aggrieved against the judgment and order dated 12.04.2018 deciding issue nos. 2 and 3 regarding court fees liable to be paid and insufficiency of court fees already paid by the present petitioners-plaintiffs in suit for declaring the sale deed to be null and void.

It is submitted by learned counsel for the petitioners that the grand mother who had executed the sale deed was not having any title to execute such sale deed as she was not the owner in possession of the property and therefore, such a sale deed was null and void. He, therefore, submits that since he has taken the plea in the case that the defendant was not title holder of the suit property, therefore, he could not be said to be predecessor in title. However, he does not dispute that the defendant no. 1 is a party to the instrument which is sought to be held as null and void. The trial court has concluded while deciding issue no. 2 that the plaintiff-petitioner has not been able to demonstrate as to how the defendant was not predecessor in title of suit property and accordingly held that the plaintiff was directed to pay the court fees as per IV-A(1) of Section 7 of the Court Fees Act, 1870.

Having held so, the Court fee already paid by the plaintiff to the extent of 1/5th of the total valuation of the sale deed was held to be insufficient and accordingly he was directed to make the deficiency good.

The learned counsel for the petitioners has placed similar arguments before this Court citing the relevant provisions of the Court Fees Act and submitted that since the defendant is not the predecessor in title of the suit property, he was not liable to pay the court fee ad-valorem. The question here is with regard to the declaration of particular sale deed as null and void. The relief prayed for in respect of sale deed is to the extent that the entire sale deed be held as null and void. Petitioner may be claiming 1/5th share of the property involved in the sale deed or subject matter of the sale deed but regarding 4/5th share he does not dispute at all.

In such above view of the matter therefore, it becomes a question of evidence and appreciation thereof as to whether the defendant was entitle to execute sale deed in respect of the suit property in its entirety. Thus the contention advanced by learned counsel for the petitioners that he was liable to pay only 1/5th share does not hold merit. The judgment and order passed by the trial court, therefore, cannot be faulted with.

In such above view of the matter, I refused to grant any indulgence.

Petition is accordingly dismissed and consigned to records.

Order Date :- 7.2.2023

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