Madhya Pradesh High Court
Smt.Kusma Devi vs Rameshwar Dayal Agrawal on 2 August, 2022
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 2nd OF AUGUST, 2022
MISC. PETITION No. 1218 of 2019
Between:-
SMT.KUSMA DEVI W/O PAWAN KUMAR, AGED
ABOUT 45 YEARS, VILLAGE BADAPURA MAUJA
USETH TEHSIL PORSA (MADHYA PRADESH)
.....PETITIONER
(SHRI ANAND V. BHARADWAJ, LEARNED COUNSEL FOR
PETITIONER)
AND
1. RAMESHWAR DAYAL AGRAWAL S/O
RADHARAMAN AGRAWAL, AGED ABOUT 61
Y E A R S , VILLAGE CHURAHA MOHALLA
FATEHABAD TEHSIL FATEHABAD (UTTAR
PRADESH)
2. NEERAJ SHARMA S/O SHRI RAKESH SHARMA,
AGED ABOUT 31 YEARS, PRATAPURA THASIL
FATEHABAD (MADHYA PRADESH)
3. COLLECTOR THE STATE OF MADHYA PRADESH
MORENA (MADHYA PRADESH)
.....RESPONDENTS
(SHRI AJAY SINGH RATHORE, LEARNED COUNSEL FOR
RESPONDENTS)
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
Petitioner has filed this petition being aggrieved by the interlocutory order dated 05.02.2019 passed by 1st Civil Judge Class I, Ambah District Morena (M.P.) in Civil Suit No.10/15.
In brief facts of the case are that petitioner has filed a civil suit against 2 respondents seeking declaration of title and permanent injunction in regard to land situated at Mauja Usetha Tahsil Porsa Khasra No. 2033 Rakwa 0.25, 2039 Rakwa 4.75, 2039/1 Rakwa 0.58, 2040, Rakwa 0.9, 2041 Rakwa 048, 2042, Rakwa 0.25, 2104, Rakwa 2.97, 2104/1, Rakwa 0.77, 2105, Rakwa 0.70, 2106, Rakwa 0.23, 2107 Rakwa 0.56, 2108 Rakwa 3.91 218/1 Rakwa 2.41, 2112, Rakwa 4.080, 2116 Rakwa 2.050 total Rakwa 25.060. The said land is in the ownership and possession of the petitioner/plaintiff. Till filing of the suit plaintiff has not executed any sale-deed regarding aforesaid land. Plaintiff went to get copy of Khasra Khatoni of disputed property to the Patwari, but Patwari did not supply the aforesaid document. Patwari informed the plaintiff that on the three sale deed executed by her, name of respondents has been mutated on the aforesaid land. Thereafter plaintiff went to the office of Sub-Registrar and got certified copy of the forged saledeed and came to know that despite she has not executed any sale-deed, respondents by affixing her photograph and by putting forged thumb impression and signature obtained aforesaid forged sale-deed in their favour. Aggrieved by the aforesaid conduct of respondents, she had preferred a civil suit.
In reply respondents has submitted that they had purchased the aforesaid land from petitioner/plaintiff. For getting extra money, she is denying execution of sale-deed. During pendency of civil suit, they have submitted an application under Order 7 Rule 11 r/w 151 CPC averring that plaintiff is executant of the said three sale-deeds, and since suit valuation is of Rs.46 Lakhs @ 12%, plaintiff has to pay ad valorem court fees of Rs.5,52,000/- but plaintiff has paid only Rs.2100/- as court fees.
Learned court below by order dated 05.02.2019 by allowing application of respondents/defendants directed the petitioner/plaintiff to pay ad-valorem 3 court fees as per the sale consideration of sale-deed. Aggrieved by the said order, petitioner has preferred this petition.
Learned counsel for the petitioner/plaintiff has submitted that petitioner has filed suit for permanent injunction and declaration on the ground that alleged sale-deed has not been executed by her. She also has not affixed signature and thumb impression. In these situation ad-valorem court fees is not required. In support of his contention, he has relied upon the decision of full bench of this Court rendered in Sunil Radhelia & ors. Vs. Awadh Narayan & ors. 2010 (4) MPLJ 431, relevant Para 16 of the said judgment is reproduced below:-
16. To sum up, the question 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 ad valorem 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.
Learned counsel for the petitioner has also relied upon the decision of the coordinate Bench of this Court rendered in Manish Parashar Vs. Pratap Trivedi & ors. (2018) 4 MPLJ 439.
Per contra, learned counsel for the respondent submits that plaintiff is liable to pay ad-valorem court fees as she is executant of the sale deed. The trial Court has not committed any error by allowing the application. In support of his contention, he has relied upon the decision of division Bench of this Court in Manzoor Ahmad Vs. Jaggi Bai & ors. 2010 1 MPWN 109.
4Respondent has placed reliance on decision of Hon'ble Supreme Court rendered in Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Ors. 2010 AIR SCW 3308. In Para 6 of the said judgment, it has been observed that:-
6. 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 non- executant, 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 ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner 5 provided for by clause (v) of Section 7.
By placing reliance on decision of division Bench of this Court rendered in Ambika Prasad and Others Vs. Shri Ram Shirmani alias Chandrika Prasad Dwivedi and Anr. 2011 (II) MPWN 118, it has been put forth by learned counsel that the decision of supreme court Suhrid Singh (supra) has been placed reliance by the Division Bench. Hence, prayer is made for dismissal of present petition.
On going through the law laid down in the Ambika Prasad (supra), it is evident that in the said case the thumb impression was obtained by misrepresentation but in the present case, the case of the petitioner/plaintiff is that she has not at all executed any sale-deed. In such a situation, the aforesaid law is of no help to the respondents.
After hearing learned counsel for the rival parties and looking to the fact that plaintiff is seeking the relief of declaration that the sale deed is void on the ground that she has not executed the aforesaid sale deed, therefore, keeping in view the peculiar facts of the case, the plaintiff is not liable to pay the ad valorem court fees at present. Consequently, present petition is allowed. The impugned order is se-aside. However, if at the time of passing the decree, the trial Court comes to the conclusion that the allegations made in the plaint have not been established or proved by the plaintiff, then the trial Court shall recover the ad valorem court fees from the plaintiff.
YOGENDRA OJHA
2022.08.03 (DEEPAK KUMAR AGARWAL)
17:31:54 +05'30'
JUDGE
ojha