Punjab-Haryana High Court
Jagdish vs Jagat Pal And Ors. on 19 August, 2002
Equivalent citations: (2003)134PLR403
Author: K.C. Gupta
Bench: K.C. Gupta
JUDGMENT K.C. Gupta, J.
1 This revision petition is directed by Jagdish petitioner (defendant No. 1) against the order dated 22.5.2001 passed by the Civil Judge (Junior Division), Sirsa, whereby his application under Order 7 Rule 11, CPC, was dismissed.
2. Briefly stated, the facts are that Jagat Pal major and Man Singh alias Man Sarup minor, sons of Hari Singh filed a suit for declaration against Jagdish and Ram Lal (now deceased) represented by his LRs. to the effect that the plaintiffs being co-parceners and joint Hindu Family members are entitled to get their due share in the land measuring 13 Kanals 8 Marias as detailed in the heading of the plaint situate in village Kusumbhi, Tehsil and District Sirsa, being the ancestral property and the sale deed dated 26.12.1983 vide which defendant No. 2 had sold away the above said land to defendant No. 1 for a sum of Rs. 23,450/- was illegal, incorrect, without any authority and was liable to be set aside and further as a consequential relief of permanent injunction restraining the defendants from alienating the above said land in any manner.
3. In the above said suit, an application was moved by defendant No. 1 (petitioner) on the plea that since the plaintiffs had challenged the sale deed, so they were under legal obligation to pay ad valorem Court-fee on the market value of the suit property mentioned in the sale deed. It was further averred that since the plaint was not properly valued for the purpose of Court-fee and jurisdiction, so, the plaint should be rejected under Order 7 Rule 11, CPC. It was also claimed that the sale deed was executed on 26.12.1983 and it was in the knowledge of the plaintiffs. However, the present suit has been filed on 18.3.1996. So, it was hopelessly time barred.
4. The Civit Judge (Jr.Divn.) after hearing learned counsel for the parties dismissed the application by holding that the suit was properly valued for the purpose of Court-fee and jurisdiction as the substantive relief claimed in the plaint is that of a declaration and the cancellation of the sale deed is only surplus-age and as such the plaintiffs were not liable to pay ad valorem Court-fee. It was further observed on the point of limitation that it |s a mixed question of law and fact because the plaintiffs had filed the suit when they had come to know about the execution of the sale deed and as such, it was a matter of evidence as to when they acquired knowledge of the execution of the sale deed and from that date the period of 12 years is to be considered.
5. Aggrieved by the said order, defendant No. 1 has filed the present revision petition.
6. I have heard Mr. Ashok Verma, Advocate learned counsel for the petitioner, Mr. Sanjiv Gupta, Advocate, learned counsel for the respondents and carefully gone through the file.
7. Learned counsel for the petitioner (defendant No. 1) contended that the plaintiffs had sought declaration to the effect that they being coparceners and members of Joint Hindu Family were entitled to get their share in the land in dispute and that the sale thereof made by Ramji Lal (since deceased) in favour of petitioner (defendant No. 1) vide sale deed dated 26.12.1983 was null and void because the land in dispute was ancestral co-parcenary property in the hands of Ramji Lal and he had no right to alienate the same and further the relief of permanent injunction was also claimed as a consequential relief. He further contended that in fact the plaintiffs had claimed a substantive relief of cancellation of the sale deed dated 26.12.1983 and the relief of declaration is only an ancillary relief and as such, Article 1 of Schedule 1 of the Court-Fees Act is applicable and Section 7(iv)(c) of the Court-Fees Act, 1870 would not apply and the respondents (plaintiffs) are required to pay ad valorem Court-fee as per sale consideration mentioned in the sale deed. He further contended that since it is alleged that the sale deed was executed by their grandfather Ramji La! who was Karta of the Joint Hindu Family, so the plaintiffs would also be deemed to be a party to that document and in such circumstances had to seek cancellation of the sale deed and cannot avoid it by seeking mere declaration that the same is not binding upon them. For this contention, he placed reliance upon authority Bagrawat v. Mehar Chand and Ors., 2001(2) P.L.J. 204 and Niranjan Kaur v. Nirbigan Kaur, (1982)84 P.L.R. 127 (F.B.). In Bagrawat's case (supra) it was held by this Court that where a suit has been filed for declaration that the sale deed executed by the plaintiffs father was without legal necessity and without consideration and against the interest of Joint Hindu Family property the same is invalid, wrong and illegal and not binding on the plaintiffs rights, then there is challenge to the validity of the sale deed and the plaintiff is required to pay ad valorem Court-fee as per sale consideration in the sale deed. It has been further held by the Full Bench of this Court in Niranjan Kaur's case (supra) that where there is a suit for cancellation of a document or declaring the document voidable by a party to the document relating to the agricultural land, then it is governed by Article 1 of Schedule I of the Court-Fees Act and ad valorem Court fee has to be paid.
8. On the other hand, learned counsel for the respondents contended that since it is suit by grandsons for declaration challenging the alienation made by their grandfather being without legal necessity and without consideration and consequently, the relief of permanent injunction has been claimed, then the question of paying ad valorem Court fee on the sale price does not arise. For this contention, he has placed reliance upon an authority of this Court, Gurjeewan Singh v. Jagtar Singh and Ors., 3 (1990-1 )97 P.L.R. 261. In my opinion, since it is alleged that the sale deed was executed by the grandfather with respect of the Joint Hindu Family property for which the respondents (plaintiffs) had also a share, so they would be deemed to be a party to the sale deed and the only way to avoid the document would be to seek its cancellation and mere declaration cannot have an effect on the document. The land in dispute has vested in the petitioner by virtue of sale deed dated 26.12.1983 and it would remain vested in him till the sale deed is cancelled. In such circumstances, in view of the law laid down in Bagrawat's case (supra) I hold that Article 1 of Schedule 1 of the Court-Fees Act is applicable and the respondents are required to pay ad valorem Court-fee on the sale consideration mentioned in the sale deed. As far as question of limitation is concerned, it is mixed question of law and fact and is to be decided on the basis of evidence to be led by the par ties as to when the plaintiffs acquired knowledge of the execution of the sale deed. So, it cannot be decided as this stage. Consequently, the revision petition is accepted and the respondents (plaintiffs) are directed to pay ad valorem Court-fee on the sale consideration mentioned in the sale deed.