Allahabad High Court
Altaf Hussain vs Vi-A.D.J., Saharanpur And Ors on 31 May, 2013
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 2.4.2013
Delivered on 31.5.2013
Case :- WRIT - C No. - 6629 of 1998
Petitioner :- Altaf Hussain
Respondent :- Vi-A.D.J., Saharanpur And Ors
Counsel for Petitioner :- Anil Kuamr Aditya
Counsel for Respondent :- C.S.C
Hon'ble Mrs. Sunita Agarwal,J.
Heard Shri Anil Kumar Aditya, learned counsel for the petitioner and learned Standing Counsel.
The writ petition has been filed challenging the judgement and order dated 7.11.1996 passed by the VIth Additional District Judge, Saharanpur.
The short controversy involved in the present writ petition is as to whether original suit no. 115 of 1991 filed by the petitioner/ plaintiff has wrongly been valued and court fee has not been properly paid in accordance with law and further court has pecuniary jurisdiction to proceed.
The original suit was filed by the plaintiff with two prayers. First prayer was for declaration of registered agreement to sell dated 16.5.1991 alleged to have been executed in favour of Dila Ram and others i.e. defendant/respondents on the ground that the defendants have got executed the sale deed by impostering another person as petitioner. Another prayer was for grant of mandatory injunction restraining the defendants not to get executed any sale deed on the basis of impugned agreement and further not to interfere in the peaceful possession of the petitioner/plaintiff by themselves or through their agents. Defendants in their written statement have raised objection that suit has been wrongly valued and court fee has not been properly paid, hence the court of Munsif Hawali, Saharanpur had no pecuniary jurisdiction to proceed. Issue no. 2 was framed on the pleading of the parties as to whether suit is undervalued and court has pecuniary jurisdiction to hear the original suit.
The Additional Civil Judge(Junior Division), Saharanpur has observed in his judgement dated 13.2.1992 that suit has been properly valued and court fee has been paid in accordance with law and as per section 7 (iv-A) of the Court Fees Act, 1870 (hereinafter referred to as the ''Act').
Further it was observed that as per Explanation to section 7 (iv-A) of the Act, the valuation of the property shall be determined as per section 7 (v) of the Act. Admittedly disputed land is an agricultural land, therefore, the court fee at 30 times of the land revenue paid has been rightly calculated, as the court has pecuniary jurisdiction to hear the cases upto valuation of Rs. 25,000/- as such issued no. 2 was decided in favour of the plaintiff by judgement and order dated 13.12.1992 .
Further, Civil Revision no. 210 of 1992, was filed by the defendants/respondent in the court of District Judge , Saharanpur. The plaintiff/petitioner contested the revision on the ground that for the purposes of court fee, valuation of disputed property is to be seen and not the amount mentioned in the agreement to sell, whereas revisionist insist that suit has to be valued at the amount on which the agreement in question was executed. The amount mentioned in the agreement to sell was admittedly Rs. 7,67,500/- thus valuation of declaration/cancellation sought in the plaint ought to be Rs. 7,67,500/-. The finding of the court below having valued the suit at 30 times of the annual land revenue payable on the land in respect of which agreement was executed is illegal. If the suit is properly valued, it goes beyond the jurisdiction of the trial court. The revision was partly allowed and the revisional court had accepted the contention of the defendant that suit cannot be valued in accordance with the provision of section 7 (iv-A)of the Act.
The revisional court while recording the finding that by virtue of agreement to sell no right to the property has been conferred against the defendant. The suit is not for cancellation of sale deed rather it is for cancellation of agreement to sell, which does not confer any right and title in favour of the petitioner. Without execution of sale deed, defendants have not got any right to title or possession of the disputed property.
Before proceeding further it would be appropriate to go through the provision of section 7 (iv-A) of the Act, which is reproduced below:-
"For cancellation or adjudging void instruments and decrees-(iv-A) In suit for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value, or an instrument securing money or other property having such value:
(1)where the plaintiff or his predecessor -in- title was not a party to the decree or the instrument, according to the value of the subject matter;
(2) where he or his predecessor -in-title was not a party to the decree or instrument, according to one-fifteen of the value of the subject matter and such value of the property to which such part relates.
Explanation- the value of the property for the purposes of this sub-section, shall be the market-value, which in the case of immovable property shall be deemed to be the value as computed in accordance with sub-sections (v), (v-A) or (v-B) as the case may be."
A careful perusal of the provisions as contained in section 7(iv-A) of the Act clearly provides that in suit for or involving cancellation of or adjudging void or voidable an ''instrument securing money or other property' having such value, if the instrument is involved in the suit, amount for which or value of the property in respect of which instrument executed, amount of court fee payable under this Act and the suit shall be computed on the amount or value of the property to which such part relates.
Further Explanation provides that value of the property for the purposes of sub-section shall be the market value, which in the case of immovable property shall be deemed to be the value as computed in accordance with sub-section(v).
"Catch words" in sub-section (iv-A) to section 7 of the Act for the purpose and dispute in the present case are "instrument securing money or other property". It has been held by Full Bench of this court in judgement of Smt. Bibbi and another Vs. Shugan Chand and other, AIR 1968,Allahabad 216 that sale deed is "instrument securing property" within the meaning of section 7(iv-A) of the Act. While holding the said preposition Justice Gangeshwar Prasad speaking for Full Bench held that :-
"A sale deed 'assures' in the most effective manner the divesting of the title of the transferor in a property and the vesting of that title in the transferee; and where the sale of a property can take place only by means of a deed it is the sale deed alone that 'assures' the extinction of the transferor's interest and the acquisition of that interest by the transferee. In my opinion, therefore, a sale deed is 'an instrument securing property' within the meaning of Section 7(iv-A) of the Court-Fees Act."
Following the Full Bench judgement Smt. Bibbi (supra) and other judgement of this court in 2006(65) ALR page 70(Ajai Tiwari Vs. Hariday Ram Tiwari and others, it is held that :-
"12. To conclude in view of Full Bench decision in the case of Smt. Bibbi and another v. Shugan Chand and others(supra) a sale-deed being a document securing other property within the meaning of section 7(iv-A) of the Act, a suit for declaration of the sale-deed as null and void squarely falls within the four corners of section 7(iv-A) and Article 17 (iii) of Schedule II which applies to suits not otherwise provided for in the Act does not come into play."
Now so far as the present case is concerned, admittedly the suit for declaration of an agreement to sell as void document on the ground that it was obtained by forged and fabricated manner.
Admittedly an agreement to sell cannot be said to be "Instrument securing property " or it does not assure vesting of that title in the transferee or extinction of transferor's interest. The transferee can also file proceeding for returning the earnest money given by him under the agreement against the transferor.
In view of the same, agreement to sell cannot be treated at par with sale deed. The suit for cancellation of same would not fall within the meaning of "instrument securing property" as per section 7 (iv-A.), therefore, suit cannot be valued on the value of the immovable property as computed in accordance with sub-section (v )of section 7 of the Act.
The revisional court has recorded the finding that in the alleged agreement, cancellation of which was sought by the plaintiff,it has been mentioned that the amount of Rs, three lac has been paid as earnest money,therefore it would be appropriate that suit should be valued on the said amount of Rs. three lac as mentioned in the agreement to sell which was alleged to have been paid as part of sale consideration. The revisional court further observed that in view of the said calculation/computation, Munisf Court, Hawali, Saharanpur i.e. trial court would not have pecuniary jurisdiction to entertain the suit.
Further observation was that as issue involved the jurisdiction of the trial court and that it had acted illegally in exercise of its jurisdiction, revision filed by the defendant is clearly maintainable. Revisional court while allowing the revision partly, directed for amendment in the plaint after payment of court fee as per observation made in the judgment dated 7.11.1996 passed by the Vith Additional District Judge,Saharanpur.
In view of the above observation, the finding recorded by the revisional court that suit cannot be valued at annual rental value of land and provision of section 7 (iv-A) would not be applicable is hereby affirmed.
The reliance placed by the learned counsel for the petitioner in the judgment of Hazi Mustafa Vs. Lalmani and others in civil revision no. 1020 of 1965, passed by this court, and Suhrid Singh alias Sardool Singh Vs. Randhir Singh and others, reported in JT 2010 (3) SC 472. These judgements are distinguishable in the facts and circumstances of the present case, as the relief in those cases is for declaration of sale deed as void.
In so far as the judgement of Division Bench of this court in, Her Highness Maharani Riwa Smt. Praveen Kumari Vs. Sangam Upnivesh Awas and Nirman Sahkari Samiti Ltd. reported in 2008 (104) RD 350. The dispute was whether provisions of section 7 (iv-A) or Article 17(iii) of Schedule- II would be applicable. Division Bench has held that Article 17 (iii) of the Act would not be applicable as the suit was not for declaratory relief simpliciter. By amendment the plaintiff/appellant made additional prayer regarding cancellation of sale deed etc. The Division Bench has remanded the matter back to the court below for computation of the valuation of the suit and court fee payable by the plaintiff.
At the end learned counsel for the petitioner faintly argued that revision was not maintainable as such order impugned is liable to be set aside. This court does agree with the conclusion drawn by the revisional court that proper computation of court fee at the valuation of suit would take away the jurisdiction of the trial court and since question of jurisdiction is involved , revision is clearly maintainable. The revisional court rightly decided the revision on merits In view of the forgoing discussion ,the writ petition lacks merit and is dismissed.
Dated31.5.2013 Aks.