Rajasthan High Court - Jaipur
Mohan Lal Sharma vs Smt. Tija Devi And Others on 7 March, 2022
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 9768/2014
Kailash Chand Sharma S/o Shri Gyarsi Ram Sharma, age 55
years, R/o Donda kin Dhani, Tikam Pura, Tehsil Jamwaramgad,
District Jaipur (Raj.)
----Petitioner/Defendant No.1
Versus
1. Smt Tija Devi W/o Shri Kajordmalji Patel, Age 62 years, R/o
Plot No.17, Shiv Colony, Purana Ramgad Mod Jaipur.
2. Smt. Choti Devi W/o Shri Badrinarayan Sharma, age 60 years,
R/o Manpur Kala, Tehsil Jamwaramgad, District Jaipur.
3. Smt. Manbhari Devi W/o Shri Rameshwar Sharma, age 58
years, R/o Gram Post Sarna Doongar, Mehanto ki Dhani, Tehsil
and District Jaipur.
----Respondents/Plaintiffs
4. State of Rajasthan through Collector, Collector Officer, Banipark Jaipur.
5. Sub Registrar Jamwaramgad, District Jaipur. ----Perform Respondents/Defendant No.2 to 3
Connected With S.B. Civil Writ Petition No. 9757/2014 Mohan Lal Sharma S/o Shri Gyarsi Lal Sharma, age 50 years, R/o Donda Ki Dhani, Tikam Pura, Tehsil Jamwarangad, District Jaipur (Raj.)
----Petitioner/Defendant No.1 Versus
1. Smt Tija Devi W/o Shri Kajordmalji Patel, Age 62 years, R/o Plot No.17, Shiv Colony, Purana Ramgad Mod Jaipur.
2. Smt. Choti Devi W/o Shri Badrinarayan Sharma, age 60 years, R/o Manpur Kala, Tehsil Jamwaramgad, District Jaipur.
3. Smt. Manbhari Devi W/o Shri Rameshwar Sharma, age 58 years, R/o Gram Post Sarna Doongar, Mehanto ki Dhani, Tehsil (Downloaded on 24/12/2022 at 03:08:10 PM) (2 of 8) [CW-9768/2014] and District Jaipur.
----Respondents/Plaintiffs
4. State of Rajasthan through Divisional Commissioner, Divisional Commissioner Office, Banipark Jaipur.
5. Sub Registrar Jamwaramgad, District Jaipur. ----Perform Respondents/Defendant No.2 to 3
S.B. Civil Writ Petition No. 9758/2014 Raghunath Prasad Sharma S/o Shri Kana Ram Sharma, age 38 years, R/o Donda Ki Dhani, Tikam Pura, Tehsil Jamwaramgad, District Jaipur (Raj.)
----Petitioner/Defendant No.1 Versus
1. Smt Tija Devi W/o Shri Kajordmalji Patel, Age 62 years, R/o Plot No.17, Shiv Colony, Purana Ramgad Mod Jaipur.
2. Smt. Choti Devi W/o Shri Badrinarayan Sharma, age 60 years, R/o Manpur Kala, Tehsil Jamwaramgad, District Jaipur.
3. Smt. Manbhari Devi W/o Shri Rameshwar Sharma, age 58 years, R/o Gram Post Sarna Doongar, Mehanto ki Dhani, Tehsil and District Jaipur.
----Respondents/Plaintiffs
4. State of Rajasthan through Divisional Commissioner, Divisional Commissioner Office, Banipark Jaipur.
5. Sub Registrar Jamwaramgad, District Jaipur.
--------Perform Respondents/Defendant No.2 to 3 For Petitioner(s) : Mr.Kapil Bardhar, Adv. For Respondent(s) : Mr.Raj Kamal Gaur, Adv.
Mr.Dilip Singh Jadaun, Adv.
Mr.Akshay Sharma, Addl. Govt.
Counsel
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(3 of 8) [CW-9768/2014]
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
07/03/2022
The present writ petitions are decided by this common order, as the issue involved in all these petitions, is in respect of the decision given by the Court below on the application filed by the petitioner under Sections 10 & 11 of the Rajasthan Court Fee and Valuation of the Suit Act, 1961 (hereinafter referred to as the 'Act of 1961') along-with the application filed under Order 7 Rule 11 CPC.
Learned counsel for the petitioners-Mr.Kapil Bardhar submitted that the plaintiffs-respondents had filed suit under Order 7 Rule 1 CPC, whereby the title of the suit was described as 'suit for declaration and permanent injunction'.
Learned counsel submitted that the prayer sought in the suit was not only in respect of declaration but petitioners also prayed for cancellation of the sale deed dated 02.03.2012.
Learned counsel submitted that the petitioners-defendants moved an application under Section 10 & 11 of the Act of 1961 along-with Order 7 Rule 11 CPC, whereby it was prayed that the plaintiffs had not paid the correct Court Fee for valuation of their suit and as such the suit was not to be entertained by the Court.
Learned counsel submitted that in the application filed by the petitioners-defendants, it was specifically made clear that the plaintiffs were required to pay Court Fee as per Section 38 (1) of the Act of 1961 as their prayer in the suit was for cancellation of the registered sale deed.
Learned counsel submitted that an objection was raised that Court Fee paid by the plaintiffs under Section 24 of the Act of (Downloaded on 24/12/2022 at 03:08:10 PM) (4 of 8) [CW-9768/2014] 1961, was in respect of the suit for declaration and the Court below after considering the entire averments of the plaint and the prayer made by the plaintiffs, should have considered payment of proper court fee as per Section 38 of the Act of 1961 and not as per Section 24 of the Act of 1961.
Learned counsel for the petitioners submitted that the Court below while deciding the application filed by the petitioners- defendants has wrongly interpreted the provisions of Court Fee and suit valuation act and the Court has further not considered the averments made in the plaint itself, where in substance, the defendants were seeking not only declaration but also sought cancellation of the sale deed.
Learned counsel submitted that the Court below though has referred certain judgments passed by this Court, however, proper interpretation has not been made of the judgments, which were placed for consideration and as such the Court below has committed error of law, while deciding the application filed by the petitioners-defendants.
Learned counsel for the petitioner submitted that the pleadings which are made before the Court in the suit, may be drafted in a particular manner or astute pleadings, however, the substance of the plaint and the relief sought by a party concerned has to be considered.
Learned counsel for the petitioner has placed reliance on the following judgments:-
1. Sukhlal and Ors. Vs.Devi Lal and Ors. reported in AIR 1951 Raj. 170
2. Lal Singh and Ors. Vs.Tejsingh and Anr. reported in AIR 1972 Raj. 137 (Downloaded on 24/12/2022 at 03:08:10 PM) (5 of 8) [CW-9768/2014]
3. Smt. Narbada Vs. Smt.Aashi reported in AIR 1987 Raj.
162.
4. Shamsher Singh Vs. Rajinder Prashad and Ors. reported in (1973) 2 SCC 524.
Learned counsel for the petitioner, on the strength of the said judgments, submitted that the parties who file suit for cancellation of sale deed, are required to pay the Court fee as computed under Section 38(1)(a) of the Act of 1961 and the respondents being the plaintiffs could not have drafted the suit in such a manner to avoid Court Fee and clever drafting will not result into not paying the proper Court Fee.
Learned counsel for the respondents-Mr.Raj Kamal Gaur and Mr.Dilip Singh Jadaun submitted that the Court below has not committed any error, while passing the order dated 02.05.2014, rejecting the application filed by the petitioners-defendants.
Learned counsel submitted that the prayer made by the plaintiffs in their plaint was in respect of declaration to the effect that sale deed was void, ineffective and illegal and not binding on them.
Learned counsel submitted that merely by writing word "fujLr", the nature of the suit was not to be changed.
Learned counsel further submitted that since the plaintiffs have not executed the sale deed, as such the only option left for them, was to file a suit for declaration and not a suit for cancellation of sale deed.
Learned counsel for the respondents has also placed reliance on a judgment passed by the Apex Court in the case of Suhrid Singh @ Sardooi Singh Vs. Randhir Singh & Ors. reported in 2010 DNJ (SC) 632.
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(6 of 8) [CW-9768/2014] Learned counsel, on the strength of the said judgment, submitted that if executant of a deed wants the deed to be annulled, he has to seek cancellation of the deed but if the non- executant seeks annulment of a deed, he has to seek declaration that the deed is invalid, no-nest or illegal or that it is not binding on him.
Learned counsel submitted that in the present facts of the case, the plaintiffs were not executants of the sale deed and as such rightly they had paid the Court Fee, as per the provisions of Section 24 of the Act of 1961 and they are not required to pay Court Fee under Section 38 of the Act of 1961.
Learned counsel for the respondents further submitted that the case law relied upon by counsel for the petitioner Sukhlal and Ors. Vs.Devi Lal and Ors. (supra) is in respect of cancellation of sale deed, which has been put to question as the father in that particular case had executed the sale deed as Manager or Karta of the Joint Hindu Family, whereas in the facts of the present case, the sale deed has been executed by the Mother of the plaintiffs and as such the said principle will not apply.
I have heard the submissions made by learned counsel for the parties and perused the material available on record.
This Court on careful reading of the law and the precedents, as decided by the Apex Court and this Court, finds that distinction has been made by the Court where there is a suit for cancellation of sale deed and suit for declaration. The sale deed is not binding on a particular party, if he is not executant. The said distinction has been explained in the case of Lal Singh (supra) by this Court.
This Court further finds that in the case of Smt. Narbada Vs. Smt. Aashi (supra), the Court has held that if the suit is for (Downloaded on 24/12/2022 at 03:08:10 PM) (7 of 8) [CW-9768/2014] cancellation of decree, the plaintiff has to pay Court Fee on money value of the property, for which such document is executed.
The reliance placed by the petitioner in the case of Sukh Lal and Ors. Vs.Devi Lal and Ors. (supra), this Court finds that the dispute in the case was in respect of the sale deed executed by the father of the plaintiff and accordingly this Court considered the distinction between a suit for cancellation of an instrument and the suit for declaration that the instrument is not binding upon the plaintiff. Para 6 of the judgment is quoted hereunder:-
"There is a difference between a suit for the cancellation of an instrument and one for a declaration that the instrument is not binding on the plaintiff, when the plaintiff seeks to establish, a title in himself and cannot establish that title without removing an insuperable obstacle such as a decree or a deed to which he has been a party or by which he is otherwise bound then quite clearly he must get that decree or deed cancelled or declared void in toto and his suit is in substance a suit for the cancellation of the decree or deed notwithstanding the fact that the suit may have been framed as a suit for a declaration. On the other hand, when the plaintiff is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties, he is not in a position to get that decree or deed cancelled in toto. The proper remedy in such a case is to get a declaration that the decree or deed is invalid so far as he himself is concerned, and, therefore, he may sue for a declaration to that effect and not for the cancellation of the decree or the deed. See -- 'Vellayya Konar v. Ramaswami Konar', AIR 1939 Mad 894 (C)."
This Court finds that in the case of Sudhir Singh @ Sardooi Singh Vs. Randhir Singh & Ors. (supra), as cited by learned counsel for the respondents, the Apex Court has clearly made a distinction of rights of executant of a deed and a non-executant. (Downloaded on 24/12/2022 at 03:08:10 PM)
(8 of 8) [CW-9768/2014] The Apex Court has clearly laid down the law that if any executant of a deed wants it to be annulled, the only remedy is to seek a cancellation of the deed and if non-executant seeks annulment of a deed, then he has to seek declaration that the deed is invalid, no-nest, illegal or that it is not binding on him.
The facts of the present case admittedly are that the plaintiffs are not the executant of the sale deed, which is put to challenge by them.
The submission of learned counsel for the petitioners that the main averments in the plaint are to be seen and in fact, if the plaintiff in substance, wants to question the sale deed, said to be operating against their interest and also make a prayer of cancellation of sale deed, then the Court Fee is required to be paid under Section 38 of the Act of 1961, this Court finds that the plaint, which has been drafted by the plaintiffs, mentioned that the sale deed, which has been executed, is not binding on them and accordingly the declaration has been sought that the sale deed in question is void, illegal and not binding on them.
The mere word "fujLr", at the end in the prayer and in one paragraph of the pleadings in the plaint, will itself not be treated as the suit is for cancellation of the sale deed.
This Court finds that the Court below has not committed any error while passing the impugned order and the writ petitions are accordingly dismissed.
(ASHOK KUMAR GAUR),J Monika/4-6 (Downloaded on 24/12/2022 at 03:08:10 PM) Powered by TCPDF (www.tcpdf.org)