Madhya Pradesh High Court
Kamal Singh Rawat vs Makhan Singh Rawat on 30 October, 2015
(1)
W.P. No.7277/13
(Kamar Singh Rawat Vs. Makhan Singh Rawat &
Ors.)
30/10/2015
Shri S.K.Shrivastava, Advocate for the petitioner.
Shri D.D.Bansal, Advocate for the respondent.
Heard on admission.
This petition, under Article 227 of the Constitution of India, is directed against the order dated 30/8/2013 passed by the trial Court allowing the application under Order 7 Rule 11, CPC calling upon the plaintiff to pay the ad volarem Court fees on the valuation of the suit done at Rs.36,98,000/-.
2. Facts necessary for disposal of this writ petition are in narrow compass.
3. Plaintiff has filed a suit seeking declaration of title and permanent injunction in respect of suit land in question with further declaration that the sale deed dated 7/6/2012, executed by defendant no.1 in favour of defendant no.2, is void, illegal and ineffective, as well as, permanent injunction restraining defendant nos. 1 and 2 from interfering with the possession of the plaintiff.
(2) W.P. No.7277/13(Kamar Singh Rawat Vs. Makhan Singh Rawat & Ors.)
4. Plaint allegations are to the effect that plaintiff and defendant no.1 are known to each other and mutual trust and faith existed between them. Defendant no.1 taking advantage of such relationship, fraudulently, mischievously and with oblique motive, got the signatures of the plaintiff on a blank paper under the pretext of getting prepared a credit card for him, but got prepared a general power of attorney purported to be executed in his favour by the plantiff and on the strength whereof, executed the sale deed in favour of his wife-defendant no.2 showing the sale consideration of Rs.36,98,000/- and the same was got registered on 7/6/12 at S.No. 556 in the office of Dy. Registrar, Shivpuri. Plaintiff further contends that he had never permitted defendant no.1 to execute the aforesaid sale deed in favour of defendant no.2 and the sale deed has been executed fraudulently.
5. Defendants filed an application under Order 7 Rule 11, CPC, inter alia contending that a careful perusal of the plaint allegations unequivocally and unambiguously suggest that the sale deed dated 7/6/12 has been executed by defendant no.1 in favour of defendant no.2 (3) W.P. No.7277/13 (Kamar Singh Rawat Vs. Makhan Singh Rawat & Ors.) by virtue of registered power of attorney dated 9/5/12. Undisputedly, the power of attorney bears the signatures of planitff, whereunder defendant no.1 is authorized to execute the sale deed in respect of the suit land and, accordingly, the sale deed has been executed in favour of defendant no.2. However, it is alleged that the power of attorney is prepared fraudulently without knowledge and consent of the plaintiff, hence sale deed in question is void, illegal and ineffective. It is contended that law is well settled to the effect that there is a presumption that registered document is a validly executed document. The onus of proof would be on the person who disputes the existence of such document and, therefore, is required to lead evidence to rebut such presumption. As such, it is a question of fact to be determined by the trial Court on the evidence led by the parties. Under such circumstances, the registered sale deed executed with the authority of registered power of attorney cannot be said to be a void document and at the most can be a voidable document. There shall be presumption that plaintiff has executed the sale deed, hence the plaintiff is required to pay ad volarem court fee on the valuation done in the suit, if he (4) W.P. No.7277/13 (Kamar Singh Rawat Vs. Makhan Singh Rawat & Ors.) wants to avoid the sale deed.
6. Per contra plaintiff has contended that since he is not a party to the sale deed, hence, to seek declaration that the sale deed is void, he is only required to pay fixed court fee.
7. The trial Court has considered the aforesaid contentions at length and concluded that the registered sale deed in question, which is alleged to have been executed on the strength of registered power of attorney fraudulently, is a voidable document and, therefore, ad volarem court fee is required to be paid to avoid the sale deed. Moreover, the plaintiff himself has valued the suit at Rs.36,98,000/-, therefore the trial Court called upon the plaintiff to pay ad volarem Court fee under Section 7(iv)(c) of the Court-fees Act, 1870 (for short "the Act") on the valuation of the suit. Being aggrieved thereby, the instant petition has been filed.
8. Counsel for the petitioner has reiterated the submissions advanced before the trial Court and (5) W.P. No.7277/13 (Kamar Singh Rawat Vs. Makhan Singh Rawat & Ors.) contended that in the light of judgment passed in Suhrid Singh Vs. Randhir Singh (AIR 2010 SC 2807), the registered sale deed in question is a void document, as he has not signed the same, therefore, is required to pay only fixed court fee.
9. Per contra learned counsel for the respondents, while relying upon the judgment of this Court dated 21/10/13 passed in Civil Revision No.5/11, submitted that the controversy involved in this case is squarely covered by the said judgment and the trial Court has not committed any error of law or fact while calling upon the plaintiff to pay ad volarem court fee under Section 7(iv)
(c) of the Act, if he wanted the relief of avoidance of the said sale deed.
10. Having heard counsel for the parties and upon careful perusal of the order impugned, in the opinion of this court, law is well settled. Admittedly, the power of attorney bears the signatures of plaintiff and is a registered document. In the light of the judgment of the Apex Court in the case of Prem Singh and others Vs. (6) W.P. No.7277/13 (Kamar Singh Rawat Vs. Makhan Singh Rawat & Ors.) Birbal and others ((2006)5 SCC 353), there is a presumption that registered document is a validly executed document. Paragraph 27 thereof, reads as under:-
"There is a presumption that registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, respondent no.1 has not been able to rebut the said presumption".
11. The registered sale deed dated 7/6/12 is executed on the strength of aforesaid power of attorney by defendant no.1 in favour of defendant no.2. In view of the aforesaid settled legal position, there would be a presumption that plaintiff has executed the sale deed in favour of defendant no.2. Unless of course, such presumption is displaced by leading evidence to the contrary and burden is discharged by the plaintiff. Hence, the trial Court has rightly found that the registered sale deed in question is a voidable document at the instance of the plaintiff. Under such circumstances, the trial Court (7) W.P. No.7277/13 (Kamar Singh Rawat Vs. Makhan Singh Rawat & Ors.) was justified having ordered for payment of ad volarem court fee under Section 7(iv)(c) of the Act on the valuation done in the suit at Rs.36,98,000/- to avoid the sale deed. The ratio of the decisions on the aforesaid proposition decided in 2010 (12) SCC 112, 2012 (5) MPHT 276, 2009 (3) MPHT 113, 2011 (2) MPHT 488, 2010 (1) MPHT 338, (2006)5 SCC 353 and (2009)12 SCC 101 support the conclusion drawn by this Court.
12. In view of the aforesaid, no illegality or jurisdictional error has been committed by the trial Court. The petition sans merit and is, accordingly, dismissed.
(Rohit Arya) Judge (and)