Himachal Pradesh High Court
Sunita Devi And Anr vs Ashish Kumar And Ors on 9 April, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 605/2018
.
Date of decision: 9.4.2019
Sunita Devi and anr. ...Appellants
Versus
Ashish Kumar and ors. ...Respondents
Coram
r to
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No
For the appellants: Mr. Suneet Goel, Advocate.
For the respondents: Mr. Ramakant Sharma, Senior
Advocate with Ms. Devyani Sharma,
Advocate, for respondents No. 1 to 3.
Tarlok Singh Chauhan, Judge (oral)
This appeal is directed against the order dated 5.4.2018 passed by the learned Additional District Judge, Hamirpur, whereby he ordered the return of plaint to the plaintiffs on the ground of lack of pecuniary jurisdiction.
2 The plaintiffs/appellants filed a suit for declaration, wherein they sought following reliefs:
1Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 12/04/2019 21:57:53 :::HCHP 2
1. Declaration that suit land is undivided joint Hindu family property and is ancestral qua plaintiffs and .
defendants and plaintiffs are owners to the extent of 5/7 share each.
2. Declaration that will dated 4.10.2005 and the mutation No. 1233 dated 14.6.2006 attested on the basis thereof are null and void ab initio and not binding upon the plaintiffs.
3. Declaration that the sale deed No. 1869 dated 28.12.2015 of land measuring 25 Kanals 08 out of suit land by defendants No. 4 to 8 in favour of defendants No. 1 to 3 is null and void abinitio and not binding upon the plaintiffs.
4. For delivery of vacant possession of the share of plaintiffs by determination and separation by way of partition of the land and permanent prohibitory injunction.
3 However, the defendants/respondents raised question of valuation of the suit for the purpose of court fee and jurisdiction as according to them, the plaintiffs being third party to the sale deed were required to affix the court fee of Rs.100/ and as such plaint is liable to be returned for filing before the appropriate court and the continuation of the suit before the Additional District Judge would otherwise curtail right of either of the parties for filing an appeal.
::: Downloaded on - 12/04/2019 21:57:53 :::HCHP 34 The learned court below, after placing reliance on the judgment of the Hon'ble Supreme Court in Suhrid Singh .
alias Sardool Singh vs. Randhir Singh and ors. AIR 2010 SC 2807, returned the plaint to the plaintiffs by observing as under: A perusal of revenue record shows that a part of suit land is recorded as Kharyatar and a part as cultivable and assessed to land revenue. As per revenue record, the land will fall under the category of agricultural land. In Suhrid Singh, supra, it has been held that if executant of the sale deed seeks its cancellation he had to pay advalorem court fee on the consideration stated in the sale deed and if a non executant, not in possession, seeks declaration that sale deed is invalid with consequential relief of possession, he has to pay an advalorem court fee as provided under section 7(iv)
(c) of the above said Act. As stated above, the sale deed has not been executed by plaintiffs nor they are in possession of any part of the suit land. Thus, they have prayed for declaring the sale deed as invalid along with consequential relief of possession and injunction. As such, the plaintiffs are liable to pay court fee on the consideration of the sale deed under challenge. He is required to value the suit for said relief as per provisions of section 7(iv) (c) of the said Act.
::: Downloaded on - 12/04/2019 21:57:53 :::HCHP 45 I am really surprised in the manner in which the learned court below has ordered the return of the plaint even .
after having correctly appreciated the legal position.
6 Admittedly, the plaintiffs were not party to the sale deed and had sought declaration as also consequential relief of possession of the suit land and were, therefore, required to pay ad valorem court fee as provided under Section 7 (iv) (c) of the Court Fee Act and such valuation in case of immovable property could not be less than the value of the property as calculated in the manner provided for by clause (v) of Section 7 of the Court Fee Act.
7 This issue has already been considered in detail by me in Subhash Chand Arora vs. Ramesh Chand Arora, 2018 SCC Online HP 1183, wherein on the basis of Suhrid Singh's case (supra), it was held as under:
9. Evidently the following principles can be culled out from the aforesaid decision:
i. if the executant of a document wants the deed to be annulled, he has to seek cancellation of the deed and to pay ad valorem Court fee on the consideration stated in the said sale deed; ii. but if a nonexecutant seeks annulment of deed i.e. when he is not party to the document, he is to seek ::: Downloaded on - 12/04/2019 21:57:53 :::HCHP 5 a declaration that the deed is invalid, nonest, 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 nonexecutant is not 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 ad valorem 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 value of the property as calculated in the manner provided for by Clause (v) of Section 7 of the Act.
10. Thus, this Court has no difficulty in concluding that if the nonexecutant of the deed, who is out of possession, seeks consequential relief and cancellation of the deed, then he is required to pay ad valorem court fee on the amount stated in the deed, which in this case happens to be Rs. 67,97,120/.
11. Admittedly, the plaintiff is not in possession of the suit land and, therefore, by clever drafting cannot be permitted to value the suit as per his own choice, more particularly, when the main relief in fact, as claimed in the suit, relates to cancellation of the family settlement deed.
8 The proposition as involved in this case is squarely covered by what has been held in paras 9 (iii) and 11 supra and in this view of the matter, the impugned order ::: Downloaded on - 12/04/2019 21:57:53 :::HCHP 6 dated 5.4.2018 passed by the learned court below is not sustainable in the eyes of law and the same is accordingly set .
aside.
9 The parties through their counsel are directed to appear before the learned court below on 30.4.2019.
10 The appeal is disposed of in the aforesaid terms, leaving the parties to bear their own costs.
application(s), if any, also stands disposed of.
r Pending
9.4.2019 (Tarlok Singh Chauhan)
(pankaj) Judge
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