Dinesh vs Yashwant Singh
2022 Latest Caselaw 6952 MP

1                                           MISC. PETITION No. 384 of 2021




IN THE HIGH COURT OF MADHYA PRADESH
                          AT INDORE
                           BEFORE
                HON'BLE SHRI JUSTICE ANIL VERMA

                     ON THE 9th OF MAY, 2022

                  MISC. PETITION No. 384 of 2021

    Between:-
    1. DINESH S/O SHRI YASHWANT SINGH ATAL , AGED ABOUT 48
    YEARS, OCCUPATION: AGRICULTURIST 1/4, PAKKI CHAWL
    NEAR SAINATH TEMPLE PATNIPURA (MADHYA PRADESH)
    2. SMT. REKHA D/O YASHWANT SINGH ATAL , AGED ABOUT 45
    YEARS, 74 VISHRAM BAGH RADHAGANJ DEWAS (MADHYA
    PRADESH)
                                                 .....PETITIONER
    (BY SHRI AMIT RAJ, ADVOCATE )

    AND

    1. YASHWANT SINGH S/O LATE SHRI RANJEET SINGH ATAL ,
    AGED ABOUT 72 YEARS, HOUSE NO 47 D BLOCK-1, SECTOR- B
    SCHEME NO. 78, ARYAN NAGAR VIJAY NAGAR (MADHYA
    PRADESH)
    2. ARPIT AGRAWAL S/O SHRI ANIL AGRAWAL , AGED ABOUT
    35 YEARS, 75, SHRI VISHAL KSHETRA DEWAS ROAD UJJAIN
    (MADHYA PRADESH)
    3. STATE OF M.P. THR DISTRICT COLLECTOR COLLECTOR
    UJJAIN (MADHYA PRADESH)
                                               .....RESPONDENTS
    (RESPONDENT NO.2 BY SHRI Y.K. MITTAL, ADVOCATE )
      This petition coming on this day, the court passed the
following:
 2                                               MISC. PETITION No. 384 of 2021




                              ORDER

Both the parties heard finally at motion stage. The petitioners have filed the present petition under Article 227 of Constitution of India being aggrieved by the impugned order dated 18.12.2020 passed by 4th Civil Judge Class II Ujjain in civil suit No. 359A/2020 whereby an application under Order 7 Rule 11 CPC filed by respondent/defendant no.1 has been partly allowed and petitioners have been directed to pay ad valorem court fee on the value of suit property.

The brief facts of the case are that petitioners have filed a civil suit for declaration of title and permanent injunction by stating that petitioners are son and daughter of respondent no. 1. In the year 2011 during family partition, respondent no.1 has received land bearing survey No. 174/2/1/2 admeasuring 0.23 hectare in his share and being the co-parceners, petitioners have equal share in the suit property by birth. Respondent no.1 has sold out the suit property on 10.8.2013 by registered sale deed and the petitioners were non executant of the sale deed so it is not binding upon them therefore, petitioners have filed the suit. Respondent no.1/defendant has filed an application under Order 7 Rule 11 CPC for dismissal of the suit on the ground of non payment of requisite court fees and other grounds before the trial court. The trial court after hearing both the parties has partly allowed the application by passing the impugned

order. Therefore the petitioners have filed the present petition.

Learned counsel for the petitioners contended that petitioners are not the executant of sale deed so they are not required to seek the relief of cancellation of sale deed but trial court has held that relief claimed by the petitioners in civil suit for declaration and permanent injunction has the effect of seeking cancellation of sale deed hence they are directed to pay the ad valorem court fees. The impugned order passed by the court below is contrary to law and facts and also contrary to the various judgments passed by the Hon'ble Apex court as well as the Hon'ble High courts. In these circumstances learned counsel prays that the impugned order passed by trial court be set aside.

Per contra learned counsel for respondent no.1 has opposed the petition and supported the impugned order passed by the learned trial court.

Both the parties heard at length and perused the documents filed by them.

The limited question that arises for consideration is what is the court fee payable in respect of prayer for declaration that the sale deed was void and not binding upon the coparcenary and for the consequential relief of permanent injunction.

Learned counsel for the petitioners have placed reliance upon the judgment of the Hon'ble Apex court in the matter of Suhrid

Singh @ Sardol Singh Vs. Randhir Singh reported in (2010) 12 SCC 112 in which the Hon'ble Apex Court has held as under:-

7. 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 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) of the Act.

Counsel for the petitioners also placed reliance upon judgments of Coordinate Bench of this court in the matter of Laxmikant Dube Vs. Smt. Piyaria reported in 2002(2) MPLJ 44, Ajay Pratap Singh Vs. Kuldeep Singh reported in 2013(2) MPLJ 602, Baijnath Singh Vs. Jagdish reported in 2014(3) MPLJ 98, Pramod Kumar Zopey Vs. Smita Zopey reported in 2018(1) MPLJ 163, order dated 26.6.2019 passed by coordinate

Bench of this Court in C.R. No. 589/2018 in the case of Kesharbai (dead) through her L.Rs. Vs. Badrinath, order dated 20.4.2022 passed by the Coordinate Bench of this court in CR No. 197/18 in the matter of Shivani Jain Vs. Rituraj and others, order dated 27.2.2021 passed by the Coordinate Bench in CR No. 26/2021 in the matter of Rambabu Sharma vs. Ramhet Gurjar, order dated 23.1.2020 passed by the coordinate bench of this court in MP No. 3843/2019 in the matter of Rajendra Kumar Timothy Vs. Santosh Kumar and in the matter of Baldeo Singh Vs. Gopal Singh reported in 1967 MPLJ 242. But in the present case petitioners are claiming their right over the suit property by way of succession and also being coparcener through their father respondent No.1 Yashwant Singh. They have filed the civil suit for declaration that the sale deed dated 31.7.2020 is not binding upon them and also seeking decree of declaration of their share in the suit property and permanent injunction.

The Hon'ble Apex court in Suhrid Singh's case (supra) has considered the provisions of Court Fees Act as amended by Government of Punjab. But such an amendment is not applicable in State of MP. Hence this citation is not fully applicable in the instant case.

It is settled law that where the executant of a sale 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, therefore, he has to merely pay a fixed court fees under Article 17(iii) of Second Schedule of the Court Fees Act. But if a non executant seeks not only a declaration 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. In the case of Jitendra and others Vs. Shyamlal and others this Court by order dated 12.3.2020 passed in MP No. 2836/2019 has held as under:-

In the case of Israt Jahan V/s. Rajla Begum : 2010 (1) MPLJ 50, the similar issue again came up for consideration before the Division Bench of this Court in which also the plaintiffs were claiming that the suit property has been devolved upon them after the death of Sabdar Hussain, the hon,ble DB has held that, 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 the plaintiffs to seek the cancellation or avoidance of the sale-deed. Although relief clause is couched in declaratory form, relief of avoidance and/or cancellation is implied in the declaratory relief contained in the plaint. Therefore, in the light of the decision passed in the case of Israt Jahan (supra), the plaintiffs are liable to pay the ad valorem court-fees on the valuation of the sale-deed. Para 13 of the aforesaid judgment is reproduced below :

"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."

This citation is applicable in the present matter because respondent no.1 is alive and he has not filed any suit for cancellation of said sale deed, petitioners are son and daughter of respondent no.1 and they are seeking their title over the suit property being co-parceners. Thus it is obligatory on the part of the petitioners to seek relief of cancellation or avoidance of the sale

deed. It was further held in that case as under:

In the present case, the plaintiffs are seeking the relief for the declaratory decree and also consequential relief which shall be governed u/s. 7(iv)(c) and for the decree of the possession of the land which shall be governed u/s. 7(v) of the Court Fees Act and for each relief, they are required to value the suit and to pay the court-fees accordingly. For the relief of possession of the land, the plaintiffs have already paid the court-fees 10 times to the land revenue. The only dispute is in respect of the court-fees for the relief of declaration and consequential relief. As per Section 7(iv)(c), in a suit for the declaratory decree and consequential relief, the valuation of the suit shall be according to the amount and the relief sought in the plaint or memorandum of appeal. The plaintiffs are seeking the relief of declaration that they be declared as owners of the suit land by way of succession and the sale-deed executed by defendants No.1 and 2 in favour of defendant No.3 be declared void and not binding on them. As per the law laid down by this Court in the case of Israt Jahan (supra), the plaintiffs are required to seek cancellation or avoidance of the sale-deed even though they have couched the relief like declaration and the said sale-deed is binding on them. Therefore, they are liable to value the suit and to pay the ad valorem Court fees based on the value of the property mentioned in the sale-deed.

In view of the law laid down by this Court in the matter of Jitendra (supra), this Court is of the considered opinion that the suit property has been sold by father of present petitioners and petitioners being coparceners and legal heirs of respondent no.1 are required to seek cancellation of sale deed. Therefore, they are liable

to value the suit and to pay the ad valorem Court fees based on the value of the property mentioned in the sale-deed. Thus, no illegality has been committed by the trial court while passing the impugned order.

Hence no interference is warranted in the matter in exercise of powers under Article 227 of the Constitution of India. The petition sans merits and is hereby, dismissed.

(ANIL VERMA) JUDGE BDJ

Digitally signed by BHUVNESHWAR DATT JOSHI Date: 2022.05.12 12:02:55 +05'30'