Madhya Pradesh High Court
Nahar Singh vs Ganga Singh on 12 December, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
Misc. Petition No.777 of 2022
Nahar Singh & Other
Vs.
Ganga Singh & Others
APPERANCE
(Shri P.C. Chandil - Advocate for the petitioners)
(Shri Rajendra Jain - Advocate for respondent No.1)
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Reserved on : 11/11/2024
Delivered on : 12/12/2024
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This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Hon'ble Shri Justice Milind
Ramesh Phadke pronounced/passed the following:
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ORDER
The present petition, under Article 226 of the Constitution of India, has been preferred by the petitioner against the order dated 17.12.2021 passed by II Civil Judge Class-I, Ambah, District Morena whereby an application, under Order VII Rule 11 of Code of Civil Procedure, 1908 preferred by the petitioners/defendants for dismissal of the suit as barred by law as well as the plaintiff requiring to pay ad-valorem Court fee which has not been paid, has been rejected.
2. Short facts of the case giving rise to the present controversy are that a suit for declaration and permanent injunction was filed by the plaintiff/respondent No.1 against the petitioners and respondent No.2 whereby declaration with regard to coparcenery rights over the suit 2 property was sought and apart from the aforesaid, further declaration with respect to sale-deed dated 18.09.2020 executed by late Shri Rajendra Singh Tomar in favour of petitioners No.1 to 5 to be null and void was also sought. Further, consequential relief of permanent injunction to restrain the petitioners from alienating the suit property and from causing obstruction in the plaintiff's possession was also sought for. For declaration plaintiff/respondent No.1 had valued the suit at Rs.13,60,000/- and had paid Court fee of Rs.1,000/- and for permanent injunction, the suit was valued at Rs.800/- and Court fee of Rs.100/- was paid.
3. In the plaint, it was averred that the revenue entry of agriculture land bearing Survey Nos.815/1, 820, 824, 1062, 1048/2, 1142/2, 1122, 1047, 1054, 1055, 1064, 1120, 1136, 1138 and 1066, ad-measuring 0.410, 0.630, 0.440, 0.220, 0.250, 0.180, 6.270, 5.630, 0.050, 0.020, 0.460, 2.00 0.050, 1.140 and 1.040 hectares situated at Village Tarainy, Tehsil Ambah District Morena in the name of late Shri Rajendra Singh, who is father of petitioner No.1 to 5 and respondent No.1 is without any title. It was further averred therein that entry of Survey No.1047, 1054, 1055, 1064, 1120, 1136, 1138, 805 ad-measuring 5.630, 0.050, 0.020, 0.460, 2.00, 0.050, 1.140 and 0.260 hectares situated at Village Tarainy, Tehsil Ambah, District Morena recorded in the name of late Shri Devi Singh who is grandfather of petitioners No.1 to 5 and respondent No.1 is also without any title. Apart from the aforesaid survey numbers, name of Petitioner No.6/Ramkali entered in the revenue records with regard to Survey Nos.805, 806, 801/2, ad-measuring 0.260, 0.210 and 0.310 hectares situated at Village Tarainy, Tehsil Ambah, District Morena and Survey No.735, ad-measuring 0.390 hectares situated at Village Dhansula, Tehsil Ambah, District Morena Ramkali is also without any title.
4. It was also averred in the plaint that entry of Survey Nos.724/1, 742, 3 744, 745 ad-measuring 0.710, 0.710, 0.460, 0.090 and 0.440 hectares situated at Village Dhansula, Tehsil Ambah, District Morena in the name of petitioners No.1 to 5 is also without any basis, as they had no title thereupon, so also entry of Survey No.724/2, ad-measuring 1.00 hectares situated at Village Dhansula, Tehsil Ambah, District Morena in the name of petitioner No.5/Pushkar Singh is without any title. Further, entry of Survey No.741/1, ad-measuring 0.240 hectares, situated at Village Dhansula, Tehsil Ambah, District Morena recorded in the name of petitioner No.3/Sher Singh is also without any title, therefore, their names were not liable to be mutated in the revenue records.
5. Further it was pleaded that entry of 1/2 of Survey No.741/2, ad- measuring 0.240 hectares situated at Village Dhansula, Tehsil Ambah, District Morena recorded in the name of petitioners No.1, 3 and 5 is without any title, so also entry of Survey No.738, ad-measuring 0.720 hectares situated at Village Dhansula Tehsil Ambah District Morena recorded in the name of petitioners No. 1, 4 and 5 is also per se illegal.
6. Further it was pleaded that entry of Survey No.740, ad-measuring 0.420 hectares, Survey No.739 ad-measuring 0.140 hectares situated at Village Dhansula, Tehsil Ambah District Morena recorded in the name of petitioners No.1, 3 and 5, namely, Nahar Singh, Sher Singh and Pushkar Singh is also without any title. Likewise, entry of Survey No.750 ad- measuring 0.300 hectares, situated at Village Dhansula Tehsil Ambah District Morena recorded in the name of petitioner No.2 Sunil Singh is also without any title. Further it was pleaded that entry of Survey No.751 ad-measuring 0.260 hectares situated at Village Dhansula Tehsil Ambah District Morena in the name of petitioners No.1, 3 and 5 is without any title and entry of Survey No.752, ad-measuring 0.320 hectares, 1/2 of Survey No. 730 ad-measuring 0.420 hectares, situated at Village Dhansula 4 Tehsil AmbahDistrict Morena recorded in the name of petitioners No.1 to 3/Nahar Singh, Sunil Singh and Sher Singh and entry of Survey No. 730 Village Dhansula Tehsil Ambah District Morena recorded in the name of petitioners No.2 and 4/Sunil Singh and Chandra Bhan Singh are also without any title, as they alleged to have acquired the title on the basis of registered sale deed dated 18.09.2020 executed by Rajendra Singh in favour of petitioners No.1 to 5 and on the basis of the said sale deed, they got their names mutated in the revenue records and as the sale deed executed by their father was without any right and title, therefore, the said sale deed be declared null and void and the mutation on the basis whereof be also declared null and void. Apart from the aforesaid declaration, permanent injunction was also sought to restrain the petitioners from alienating the suit land and from causing obstruction in the plaintiff's possession.
7. On being noticed, the petitioners submitted an application under Order VII Rule 11 CPC before the learned trial Court for dismissal of the suit as barred by law as well as for proper valuaiton of the suit land the plaintiff requiring to pay ad-valorem Court fee which has not been paid, therefore, the suit filed by the plaintiff be rejected.
8. After hearing the matter, the Trial Court dismissed the said application vide impugned order dated 17.12.2021. Aggrieved by the aforesaid order, the present petition has been filed.
9. Learned counsel for the petitioner had vehemently argued that the relief which has been sought in the plaint is with regard to the declaration of their rights in the agriculture land recorded in the name of the petitioners being ancestral coparcenery property and further sought declaration of the sale deed executed by late Shri Rajendra Singh in favour of petitioners No.1 to 5 as null and void, thus, the provisions of Section 5 7(iv)(c) of the Court Fees Act would be applicable and as per the provisions of Section 7(iv)(c) of the Act for a declaratory decree and consequential relief Court-fee shall be computed on the basis of the amount at which the suit has been valued and as the plaintiff had valued the suit for declaration at Rs.13,60,000/-, therefore, the Court fees of Rs.1,11,400/- was required to be paid but the plaintiff has only paid Court fees of Rs.1,100/-. Thus, apparently, the plaint was deficit of the payment of the Court fees, therefore, the learned Trial Court was required to direct the plaintiff to pay the a pay ad-valorem Court fee, but instead thereof, had rejected application while passing the impugned, therefore, the same deserves to be set aside.
10. It was further argued that from bare perusal of the plaint averments, it would be evident that the plaintiff/respondent had challenged the registered sale deed executed by their father late Rajendra Singh in favour of the petitioners No.1 to 5, thus, had stepped in the shoes of Rajendra Singh and by seeking declaration with regard to sale deed to be null and void, they are trying to avoid the sale deed, in such circumstance, the plaintiff was required to pay the ad-valorem Court fees, but this aspect has not been considered by the learaned Trial Court and had wrongly rejected the application which deserves to be interfered with.
11. It was further argued that the plaintiff had sought relief with respect to correction of the entries of agriculture land for which there is specific provision under Section 115 of the M.P. Land Revenue Code provided that the Sub Divisional Officer has the jurisdiction to deal with the same. In the light of provisions of Section 257 of Code, the Civil Court has no jurisdiction to deal with the matter, therefore, the suit filed by the plaintiff deserves to be rejected. Thus, it was submitted that the Court below had committed grave error in rejecting the application by the impugned order 6 herein, therefore, the same deserves to be set aside.
12. Per contra, learned counsel for respondent No.1 while placing reliance on the judgment of the Hon'ble Supreme Court in the matter of Suhrid Singh @ Sardool Singh vs. Randhir Singh & Others reported in (2010) 12 SCC 112 as well as the order passed by this Court in the matter Vijay Jatav vs. Prem Kushwah & Others (Misc. Petition No.3884 of 2022, decided on 21.02.2024) has submitted that where the executant of a deed wants to get it 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 and in a case where deed is challenged by a non-executant, who 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 under Article 17(iii) of Second Schedule of the Act. In the present case, as there is no prayer for cancellation of sale deeds rather prayer is for a declaration that the deeds do not bind coparcenary rights and for joint possession and the plaintiff was not executant of the sale deeds, therefore, the effect of such a relief would not amount to cancellation of the sale deed, and they are not liable to pay ad-valorem Court-fees. It was thus prayed that the present petition being devoid of any substance deserves to be dismissed.
13. Heard counsel for the parties and perused the record.
14. From the perusal of the plaintiff averments, it could be seen that the plaintiff/respondent is claiming 1/7th right in the Hindu coparcenary undivided property, thus, is seeking an independent right altogether from his late Shri Rajendra Singh Tomar and is not claiming any right through him and when the respondent/plaintiff is not claiming right through his father in the suit property, he is merely required to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him 7 and being a non-executant of a deed and is in possession of the property, he is not required to pay ad-valorem Court-fee rather, he is required to pay a fixed Court-fee.
15. The Hon'ble Apex Court in the matter of Suhrid Singh @ Sardool Singh (supra) in para 6 has held as under:
"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 for 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 nonexecutant, 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 advalorem court fee as provided under Section 7(iv)(c) of the Act."
16. The Full Bench of this Court in the matter of Sunil Radhelia and others Vs. Avadh Narayan and others reported in 2011 (1) JLJ 71 has further clarified while relying upon many judgments passed by the Apex Court as well as earlier Full Bench and Division Bench of this Court and 8 summed up the conclusion as under:
"16. To sum up, the questions referred to this Court are answered thus: (1) Ad-valorem Court-fee is not payable when the plaintiff makes an allegation that the instrument is void and hence not binding upon him. (2) The decision rendered in Narayan Singh (supra), lays down the law correctly that the plaintiff, a party to the instrument is not required to pay advalorem court fee as he had made an allegation that the instrument was void on the ground that the document was forged one and it does not bear the signature of the executant. Now matter be placed before the Division Bench for deciding the case in accordance with law."
17. The Full Bench of this Court in the case of Sunil Radhelia (supra) has also discussed the aspect that when the plaintiff had sought and instrument to be void and in that case, he was not required to pay ad- valorem Court-fee, In Para 15, the Full Bench had held in following manner:-
"15. Now second question may be seen in respect of the judgment rendered in Narayan Singh (supra). In Narayan Singh (supra), the plaintiffs had filed suit with the averment that the sale deed in question was illegal and void. It was a forged document and also without consideration. The plaintiffs were in possession of the land, a relief for declaration was prayed and a fixed court fee was paid. The defendants moved an application under Order 7 Rule 11 of CPC for rejecting the plaint on the ground that though the plaintiffs had assailed the sale deed, but had not paid ad-valorem court fee which ought to have been paid. The Trial Court had rejected the application which order was assailed before the Division Bench. The Division Bench held that the case of plaintiffs was that the document was a forged one and it does not bear the signature of Sitaram though Sitaram was party to the sale deed. Plaintiffs had claimed their possession over the suit land. The suit was for permanent injunction and declaration. When the document was alleged to be illegal, void and executant had not signed the document, it was not 9 necessary for them to make payment of ad-valorem court fee. The document in the plaint was shown to be void and not voidable, so advalorem court fee was not required and a fixed Court fee was found to be adequate. The Division Bench further held that if the document, as per averment made in the plaint, is pleaded to be a void document so it is not necessary for the plaintiffs to avoid document by claiming relief to set aside and a fixed court fee under Article 17(iii) of Schedule II of the Court fee Act was sufficient. In the light of the discussion, while deciding the question No.1, we have also held so and accordingly we find that the law laid down by the Division Bench in Narayan Singh (supra), has been correctly laid down."
18. This Court in the matter of Gomatiprasad and another Vs. Mahesh Singh and others reported in 2017 (3) M.P.L.J. 203, has considered all the relevant judgments and thereafter came to the conclusion in following manner:-
"19. Once the petitioners/plaintiffs were not party to the sale deed and once respondent No.4 has not disposed of the properties as Karta (manager) of the joint Hindu family then certainly rigors of Section 7(iv)(c) are not attracted and petitioners cannot be fastened with the liability of Ad- Valorem Court Fee on the basis of tangential pleadings/recital."
19. Thus, in view of the above, it is clear that plaintiff is claiming an independent right to his father in the coparcenary property and was not the executant of the sale deeds and was not privy to the transaction in any manner therefore, he was then they are not required to pay ad-valorem Court fee.
20. The Apex Court in the case of Sri Rathnavarmaraja Vs. Smt. Vimla reported in AIR 1961 SC 1299 has held that the issue of payment of court fee is always between the plaintiffs and State and defendant has no scope for challenging the order whereby application for payment of ad- valorem court fee filed by the defendant is rejected. Relevant discussion in 10 Para 3 is reproduced as under:-
"3. But this section only enables the defendant to raise a contention as to the proper court-fee payable on a plaint and to assist the court in arriving at a just decision on that question. Our attention has not been invited to any provision of the Madras Court fee Act or any other statute which enables the defendant to move the High Court in revision against the decision of the court of first instance on the matter of court fee payable in a plaint. The Act, it is true by S.19 provides that for the purpose of deciding whether the subject-matter of the suit or other proceeding has been properly valued or whether the fee paid is sufficient, the Court may hold such enquiry as it considers proper and issue a commission to any other person directing him to make such local or other investigation as may be necessary and report thereon. The anxiety of the Legislature to collect court fee due from the litigant is manifest from the detailed provisions made in Ch. III of the Act, but those provisions do not arm the defendant with a weapon of technicality to obstruct the progress of the suit by approaching the High Court in revision against an order determining the court fee payable. In our view, the High Court grievously erred in entertaining revision applications on questions of court fee at the instance of the defendant, when no question of jurisdiction was involved."
21. The Coordinate Bench of this Court in the matter of Haricharan and others Vs. M. Ojha and others reported in 2001 (1) JLJ 122 reiterated the legal position that no scope of defendant to challenge the rejection of application under Order VII Rule 11 of the CPC for payment of ad-valorem court fee exists and said cannot be challenged in revisional jurisdiction.
22. This Court in the light of the aforesaid discussion finds that defendant has very little scope to challenge such applications which are being rejected at the instance of defendants for payment of ad-valorem Court-fee by the plaintiffs because there is no jurisdictional error or material irregularities in exercise of jurisdiction apparently available on 11 record.
23. Accordingly, the present petition being sans merits is hereby dismissed.
(Milind Ramesh Phadke) Judge pwn* PAWAN KUMAR Digitally signed by PAWAN KUMAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, 2.5.4.20=b864d1ab4ace2215bfcf3ab301c34d631287f1b1cdd90b4a49f265f0 2d9d593f, postalCode=474001, st=Madhya Pradesh, serialNumber=61B9D129971D2EA4FD4455ED49EA436EA65E26164BEEED89 153191C56E98CE21, cn=PAWAN KUMAR Date: 2024.12.12 16:11:20 +05'30'