Punjab-Haryana High Court
Rachhpal Singh vs Ajit Singh And Ors on 19 November, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
Civil Revision No.3340 of 2013 -1-
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No.3340 of 2013
Reserved on 4.11.2014.
Date of decision: 19.11.2014
Rachhpal Singh
....Petitioner
Versus
Ajit Singh and others ...Respondents
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr. Rohit Sharma, Advocate for
Mr. R.S.Chauhan, Advocate for the petitioner.
Ms. Neha Jain, Advocate for respondent no.5.
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G.S.Sandhawalia J.(Oral)
1. Challenge in the present revision petition filed under Article 227 of the Constitution of India by the petitioner/plaintiff is to the order dated 25.4.2013 (Annexure P/1) whereby the Civil Judge (Junior Division), Amritsar allowed the application filed by the respondents/defendants under Order 7 Rule 11 CPC and directed that the plaintiffs should furnish Court fees as the relief of cancellation of the sale deeds had been prayed for.
2. A perusal of the paper book would go on to show that the petitioner alongwith Ranjit Kaur, respondent no.6 being children of Jaswant Singh filed a suit for separate possession by way of partition of property bearing No.17/5, Kennedy Avenue, Amritsar, measuring 115.30 Sq. yards in which triple storey Building had been raised and declaration was also sought that plaintiffs and defendants No.1,2 and 3 who are also children of Jaswant Singh had got 1/5th share in the property in question. The sale deed dated 18.8.2009 registered on 19.8.2009 executed by defendant no.5, Amritsar Improvement Trust in favour of defendant no.1 was challenged being illegal, null and void. The subsequent transfer deed dated 18.9.2009 executed by defendant no.1 in favour of PRADEEP KUMAR ARORA 2014.11.20 10:36 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.3340 of 2013 -2- **** defendant no.4 Pavijit Singh was also challenged being collusive and illegal.
3. The suit was contested by defendant no.5 with the Improvement Trust by taking the plea that Jaswant Singh had died on 24.10.1993 to whom plot No.17/5 had been sold. The certificate of legal heirs was issued by the office of Deputy Commissioner, Amritsar on 3.4.2003. Niranjan Kaur wife of deceased Jaswant Singh along with plaintiff Rachhpal Singh filed legal objections regarding acceptance of legal heirs to Ajit Singh, defendant no.1 but later on they filed mutual agreement and gave no objection for accepting him as sole successor of the property.
4. An application under Order 7 Rule 11 (b) CPC for rejection of the plaint on account of under valuation of the suit property wherein cancellation of the sale deed dated 18.8.2009 had been sought and the second sale deed dated 18.9.2009 in favour of defendant no.4 was filed by the defendants. The application was contested taking the plea that it was a separate suit by way of partition and declaration and the plaintiffs were not a party to the sale deed and neither they were signatories to the sale deed. Accordingly, the suit had been correctly valued for the purpose of Court fees and jurisdiction and plaint had been correctly stamped.
5. The trial Court allowed the application as noticed above by solely mentioning that challenge to the sale deed had been made and the cancellation of the sale deeds had been prayed for and therefore, the plaintiffs were required to furnish Court fees as per the provisions of the Court Fees Act, 1870.
6. While issuing notice of motion, the implementation of the order in question was stayed on 24.5.2013. From the above sequence of events, it would be clear that the plaintiffs were never party to the sale deeds by which the land was transferred in favour of respondent no.1 Ajit Singh who subsequently transferred the property in favour of respondent no.4. The plaintiffs being co-
PRADEEP KUMAR ARORA 2014.11.20 10:36 I attest to the accuracy and integrity sharers were only asking for relief for separate possession by way of partition of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.3340 of 2013 -3- **** and had not sought exclusive possession to the detriment of other defendants. The Apex Court in Suhrid Singh @ Sardool Singh Vs. Randhir Singh & others 2010 (12) SCC 112 has held that if a non executant seeks annulment of a deed and filed suit for declaration without being executant of the deed, he has to merely affix the Court fees of ` 19.50. In the said case, the sale deeds were under challenge and it was held that they were not binding on the coparcenary and consequent relief of joint possession and injunction were sought for. In the present case also, the relief of separate possession by way of partitioning the property on the ground that they are owners being legal heirs of Baba Jaswant Singh and after the death of their mother Niranjan Kaur, the property has devolved upon the five children is the subject matter of consideration before the Court.
7. A Division Bench of this Court in Tarsem Singh & others Vs.Vinod Kumar & others 2014(1) ICC 1054 has also further observed that a person who is non executant he is not required to pay ad valorem Court fees. The relevant observations of the Division Bench read as under:-
"5. In view of the said example given an example in para No. 6 of the judgment and the finding recorded in para No. 7, we hold as follows:-
(i) If the executant of a document wants a deed to be annulled, he is to seek cancellation of the deed and to pay advalorem Court fee on the consideration stated in the said sale deed.
(ii) But if a non-executant seeks annulment of deed i.e. when he is not party to the document, he is to seek a declaration that the deed is invalid, non-est, illegal or that it is not binding upon him. In that eventuality, he is to pay the fixed Court fee as per Article 17(iii) of the Second Schedule of the Act.
(iii) But if the non-executant is not in possession and he seeks not only a declaration that the sale deed is invalid, but also a consequential relief of possession, he is to pay the advalorem Court fee as provided under Section 7(iv)(c) of the Act and such valuation in case of immovable property shall not be less than the PRADEEP KUMAR ARORA value of the property as calculated in the manner2014.11.20 provided I attest to the accuracy for 10:36 by and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Revision No.3340 of 2013 -4- **** Clause (v) of Section 7 of the Act.
6. In view of the aforesaid judgment of the Hon'ble Supreme Court, the issue leading to payment of the Court fee is decided in terms of the parameters laid down above. The single bench judgments rendered prior to the Supreme Court judgment mentioned above run counter to the aforesaid view and thus overruled. The Reference is answered accordingly. The Single Bench judgments rendered, so far as they run counter to the aforesaid view, are thus overruled."
8. The plaintiffs in the present case are only claiming ownership on the basis of being legal heirs of Baba Jaswant Singh and are not bound to pay the Court fees at the market value of the suit land or on the basis of amount of sale deed which are subject matter of challenge and accordingly they cannot be held liable for payment of ad valorem Court fees as has been directed by the trial Court. Accordingly, the said order dated 25.4.2013 is not sustainable and the same is set aside.
9. Accordingly, the present revision petition is allowed.
19.11.2014 (G.S.SANDHAWALIA)
Pka JUDGE
PRADEEP KUMAR ARORA
2014.11.20 10:36
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh