Madhya Pradesh High Court
Rajpalsingh vs Dilip Anjana on 29 February, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 29 th OF FEBRUARY, 2024
MISC. PETITION No. 1875 of 2023
BETWEEN:-
RAJPALSINGH S/O SHRI ISHWARSINGH SISODIYA,
AGED ABOUT 25 YEARS, OCCUPATION: BUSINESS R/O
C-9/9 MAHANANDA NAGAR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MURTUZA BOHRA, ADVOCATE)
AND
1. DILIP ANJANA S/O LATE SHRI VIKRAMSINGH
ANJANA, AGED ABOUT 23 YEARS, OCCUPATION:
AGRICULTURE BANYAKHEDI, TEH, BADNAGAR
(MADHYA PRADESH)
2. SMT. JATANKUNWAR W/O LATE VIKRAM SINGH
ANJANA, AGED ABOUT 49 YEARS, GRAM
BANYAKHEDI TEHSIL BADNAGAR DIST UJJAIN
(MADHYA PRADESH)
3. YOGENDRA SHARMA S/O GAJENDRA SHARMA,
AGED ABOUT 36 YEARS, 06, KANHAIYALAL
MANANA MARG GALI NO. 5 GURUMANDIR KE
PICHE UJJAIN (MADHYA PRADESH)
4. VISHAL S/O GAJENDRA SHARMA, AGED ABOUT
29 YEARS, 06, KANHAIYALAL MANANA MARG
GALI NO. 5 GURUMANDIR KE PICHE UJJAIN
(MADHYA PRADESH)
5. STATE OF M.P. THR COLLECTOR UJJAIN
(MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENTS NO.1 & 2 BY SHRI SAMEER ANANT ATHAWALE,
ADVOCATE)
This petition coming on for admission this day, th e court passed the
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 07-03-2024
19:04:00
2
following:
ORDER
The petitioner / defendant has filed the present petition under Article 227
of the Constitution of India being aggrieved by the order dated 19.01.2021
passed by the Additional District Judge, Badnagar Districti - Ujjain, whereby the
application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908
has been dismissed.
02. Respondents No.1 & 2 / plaintiff filed a suit for declaration and
permanent injunction in respect of land bearing Survey No.115/2 area 3.380
hectare situated at Village - Nanyakhedi, Tehsil - Badnagar, District - Ujjain.
According to the plaintiffs, they are the joint owner of the suit land and no
partition has taken place. Plaintiff No.1 was in need of money, for which he
borrowed an amount of Rs.13,00,000/- from defendant No.1. In order to
execute the agreement, she was called in the office of Deputy Registrar, where
defendant No.1 obtained her signature on blank paper and got prepared a
forged power of attorney. Again they were in need of money and requested
defendant No.1 to give a loan of Rs.15,00,000/-. Plaintiff No.2 put thumb
impression on blank paper in the Office of Deputy Registrar and the amount
was paid to her by way of cheque. The plaintiffs paid the interest amount of
Rs.3,69,000/- as they borrowed money from defendants. According to the
plaintiffs, the defendants are pressurizing and threatening them to sell the land.
According to the plaintiffs, the defendants got prepared forged agreement to
sale dated 07.08.2019 and 22.10.2019 and power of attorney in the name of
defendant No.2 dated 07.08.2019 and 22.10.2019. Therefore, the sale deed
dated 05.09.2020 and 11.09.2020 are void and not binding on them, hence, they
filed a suit on 22.10.2020 for declaration and permanent injunction. Though the
plaintiffs have valued the suit to Rs.1,50,00,000/- on the basis of value of the
land mentioned in the sale deed, but paid the fixed amount of court fee payable
for decree of declaration and permanent injunction.
03. The present petitioner / defendant appeared and filed an application
under Order VII Rule 11 of the CPC that the plaintiffs are liable to pay ad
valorem amount of the court fee as they are party to the power of attorney as
well as sale deed, hence, the suit be dismissed due to non-payment of the ad
valorem court fee. Vide impugned order dated 19.01.2021, the learned Court
has dismissed the application by holding that the plaintiffs are seeking decree
that the sale deeds are void and not binding on them and they are not the party
to the sale deed, therefore, they are not liable to pay the ad valorem court fee.
Hence, the present petition is before this Court.
04. Learned counsel for the petitioner submits that the petitioner duly
executed the power of attorney as well as sale deed and virtually they are
seeking declaration that sale deeds be cancelled, therefore, they are liable to pay
the ad valorem court fee.
05. Learned counsel appearing on behalf of the plaintiffs submits that the
plaintiffs are alleging that the sale deed has been obtained by way of fraud,
therefore, they are not liable to pay the ad valorem court fee and only
declaration is liable to be granted.
06. I have heard learned counsel for the parties at length and perused the
record.
07. The Apex Court in the case of Suhrid Singh Alias Sardool Singh
v/s Randhir Singh & Others reported in (2010) 12 SCC 112 has held that if
the executant of a deed wants to avoid the sale, he has to sue for cancellation of
deed. On the other hand, if the joint owner of the property, who is not an
executant of the deed wants to avoid the sale deed, he has to sue for a
declaration that the deed executed by one of the co-sharer / co-owner is invalid
/ void and non est / illegal and he is not bound by it. Paragraph - 7 of the said
judgment is reproduced below:-
"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
f o r 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."
[Emphasis Supplied]
08. The Full Bench of this Court in the case of Sunil S/o Dev Kumar
Radhelia & Others v/s Awadh Narayan & Others reported in 2010 (4)
M.P.L.J. 431 held that when the plaintiff makes an allegation that the instrument
is void and no binding upon him and declaration simplicitor prayed, then he
need not to pay the ad valorem court fee.
09. The Division Bench of this Court in the case of Ambika Prasad &
Others v/s Shri Ram Shiromani @ Chandrika Prasad Dwivedi & Another
reported in 2011 (3) M.P.L.J. 184 has considered the judgment of Apex
Court in the case of Suhrid Singh (supra) and judgment of Full Bench in the
case of Sunil Radhelia (supra) and held that admittedly the plaintiff is an
executant of the sale deed sought to be declared as void. The sale deed bears
his thumb impression and the sale consideration is clearly mentioned therein,
hence, the sale deed, in our considered opinion, is voidable and plaintiffs have
to pay the ad valorem court fee as held by the Supreme Court in the case of
Suhrid Singh (supra). So far as the judgment passed in the case of Sunil
Radhelia (supra) is concerned, same was not produced before the Full Bench
and had this decision been brought to the notice of Full Bench in all probability
they too would have taken the same view. Paragraphs - 11 & 12 of the judgment
passed by the Division Bench is reproduced below:-
"11. In the case at hand, plaintiff No. 1 was admittedly an executant of
the sale deed sought to be declared as void. The sale deed also bears
his thumb impression and the sale consideration is clearly mentioned
therein. The plaintiffs in their suit for declaration have prayed that the
sale deed be declared as void by alleging that it was executed by playing
fraud and misrepresentation. The relief claimed implies a relief for
cancellation of sale deed because plaintiff No. 1 (now dead) was an
executant of the same. The sale deed, in our considered opinion, is
voidable as the apparent state of affairs is a real state of affairs and the
plaintiffs, who have alleged otherwise, are obliged to prove it as void. The
plaintiffs, therefore, have to pay ad valorem Court fee on the
consideration stated in the sale deed. As held by the Supreme Court in
Suhrid Singh (supra), had plaintiff No. 1 been a non-executant the
plaintiffs could have merely paid a fixed Court fee provided in Entry 17
(iii) of Second Schedule of the Act.
12. It is true that in Sunil Radhelia (supra), the Full Bench has held that
ad valorem Court fee is not payable when the plaintiff makes an
allegation that (he instrument is void and not binding on him even if
he be the executant of the document. But it is equally true that the
decision of the Supreme Court in Suhrid Singh (supra), was not placed
before the Full Bench and, therefore, it is not referred therein. Had the
decision of Suhrid Singh been brought to the notice of the Judges of
Full Bench, in all probability they too would have taken the same view
which we have taken."
[Emphasis Supplied]
10. In view of the aforesaid dictum of Apex Court as well as Division
Bench of this Court Suhrid Singh & Sunil Radhelia (supra) respectively, the
impugned order dated 19.01.2021 is set aside. The trial Court is directed to
value the suit and direct the plaintiffs to pay the ad valorem fee, before
proceeding further in the suit.
11. With the aforesaid, Miscellaneous Petition stands allowed.
(VIVEK RUSIA)
JUDGE
Ravi
