Punjab-Haryana High Court
Ramdev Singh vs Jeet Singh And Ors on 2 September, 2014
CR No.7378 of 2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.7378 of 2013 (O&M)
Date of decision: September 2nd , 2014
Ramdev Singh
...Petitioner
Versus
Jeet Singh and ors.
...Respondents
CORAM: HON'BLE MR.JUSTICE DR. BHARAT BHUSHAN
PARSOON
Argued by: Mr. P.K. Gupta, Advocate
for the petitioner.
Mr. Deepak Aggarwal, Advocate
for respondent No.2.
****
Dr.Bharat Bhushan Parsoon, J.
1. Petitioner herein and plaintiff in the suit, pending adjudication before the lower Court by way of this revision petition challenges order dated 8.10.2013 passed by Civil Judge (Jr. Division), Nabha whereby he has been called upon to pay ad-valorem Court fee on the monetary consideration of the sale deed which has been challenged in the suit by him.
2. It is claimed by the revisionist/petitioner-plaintiff that lower Court failed to take note of the fact that the property is joint Hindu family coparcenary property, wherein the petitioner-plaintiff has 1/4th share by birth and respondent No.2 (defendant No.2 in the suit) could not have sold more than BRIJ MOHAN 2014.09.04 15:52 I attest to the accuracy and integrity of this document Chandigarh CR No.7378 of 2013 (O&M) -2- his 1/4th share and that too for legal necessity. It is claimed that the Court below has wrongly construed the pleadings of the petitioner-plaintiff, where no relief of actual possession has been sought whereas the Court has passed the impugned order on the premise that decree for possession has been sought.
3. Claim of the respondents, on the other hand, is that since sale deed dated 25.10.2011 executed and registered by respondent-defendant No.1 in favour of respondent-defendant No.2 is under challenge, the petitioner- plaintiff is liable to pay ad-valorem Court fee. It is, thus urged that there is no infirmity in the impugned order.
4. Counsel for the parties have been heard while going through the grounds of revision petition and impugned order while appreciating the attending facts as also the circumstances.
5. It is not disputed that sale is of joint Hindu family coparcenary property wherein share of the vendor/respondent-defendant was to the extent of 1/4th share and petitioner-plaintiff was also holding 1/4th share therein. Petitioner-plaintiff is not executant of the impugned sale deed. It is claimed that the alienation is without consideration as also without competence of the vendor as there was no legal necessity.
6. Every coparcener in joint Hindu family coparcenary property has community of interest and unity of possession in the land held by such joint Hindu family coparcenary. He, thus cannot be taken to be out of possession.
7. Even when relief of joint possession has been sought, it is consequential to the main relief of avoidance of the sale deed and thus germinates and flows from the same. By no means such relief of consequent joint possession pursuant to avoidance of the sale deed by the petitioner-plaintiff is independent, set apart or different from the main relief.
8. Independent relief can only be that which can stand alone even if the main relief sought, is not granted to the plaintiff. Applying this test, BRIJ MOHAN 2014.09.04 15:52 I attest to the accuracy and integrity of this document Chandigarh CR No.7378 of 2013 (O&M) -3- if the main relief of avoidance of sale deed sought for by the petitioner is not granted to him, relief of joint possession also has to be declined because it flows from the main relief itself and had no separate existence. In short, relief of joint possession has no separate and independent existence in absence of the relief of avoidance of sale deed which is the main relief sought by the petitioner-plaintiff. In almost similar circumstances in Kulwant Kaur and ors. Versus Joginder Kaur and ors., 2011(3) Civil Court Cases 200, a coordinate Bench of this Court while referring to the relevant case law on this aspect, had held that in a suit for declaration claiming relief of joint possession as a consequence where plaintiff is non-executant of impugned sale deeds, the case is covered under Section 7(iv)(c) of the Act and thus he is not required to affix ad valorem Court fee as per consideration of the sale deeds. Relevant portion of this authority is reproduced as below:-
"In the present case, petitioners-plaintiffs alongwith other co-sharers are claiming relief of declaration of joint ownership on the basis of a Will allegedly executed by deceased Hazara Singh, whose inheritance is in dispute. They have also challenged subsequent mutations sanctioned on the basis of inheritance ignoring the Will and subsequent two sale deeds executed by defendant No.6 and have claimed relief only for joint possession. They are not the parties to the sale deeds, which are sought to be cancelled. Hence, even if it is taken that they are seeking relief of possession and, however, as they are non-executant of the impugned sale deeds, their case would be covered under Section 7(iv)(c) of the Act and the Court fee would be computed according to the amount by which the relief sought is valued in the plaint and such valuation shall not be less than the value of the property calculated in the manner provided by Clause (v) of Section 7.
In view of these facts, the present petitioners-plaintiffs are not to affix the ad valorem Court fee, as per consideration of the impugned sale deeds.
9. In a similar tone in Harmail Singh Versus Gurmail Singh and others, 2010(1) PLR 127, a Coordinate Bench of this Court had held as under:-
"In the present case also, the main and substantial relief sought for by the plaintiff is declaration and the consequential relief is ancillary one. The petitioner being not party to the sale has claimed it to be illegal and not binding qua his rights. Section BRIJ MOHAN 2014.09.04 15:52 I attest to the accuracy and integrity of this document Chandigarh CR No.7378 of 2013 (O&M) -4- 7(iv) of the Act, clearly contemplates the suits to obtain declaratory decree where consequential relief is prayed. It further provides that in all such suits, the plaintiff shall state the amount at which value the relief is sought.
As a result of aforesaid discussions, the facts and circumstances of the present case, are covered by Section 7(iv) of the Act, as such no ad-valorem Court fee is required. I find support to my this view from the judgments delivered in case Krishna Devi and another v. Jaswant Singh, 2006(4) RCR(Civil) 563; Ravinder Kumar v. Narinder Kumar and Ors., 2007(2) RCR(Civil) 1; and Teja Singh v. Smt. Amar Kaur and Ors., 2008(1) Civil Court Cases 531."
10. Recently in Civil Revision No.2489 of 2012 titled "Rambai Versus Kapoori and anr." decided on 4.8.2014, this aspect has been discussed threadbare and it has been held that where consequent relief is only flowing as a sequel to the main relief, ad-valorem Court fee is not payable. In this judgment, even if the plaintiff was signatory to the sale deed but she had continued to be in possession and allegedly no consideration had passed hands from the alleged vendee, who was her close kin to the plaintiff. It was further by the vendor that she had been duped and defrauded by her close kin. It was held that it was not a case of affixation of ad-valorem Court fee. It was held as under:-
"When neither the petitioner owns execution of the sale deed nor any consideration had been paid to her for execution of the sale deed nor the possession has been disturbed, the only change which has come is the execution of a document which is disputed in its authorship as also in consideration backing the document. Only relief sought in the suit is for declaration that the sale deed is illegal, null and void. Though relief of permanent injunction has also been claimed but it emanates from the cancellation itself and does not become any substantive relief by its own nature."
11. In view of the discussion held earlier, the impugned order does not stand legal scrutiny. Thus allowing this petition, the impugned order is set aside. Sequelly, application of the respondent-defendant filed before the lower Court under Order VII Rule 11 CPC calling upon the petitioner-plaintiff to affix ad-valorem Court fee is dismissed. Parties to appear before the lower Court on 7.10.2014.
BRIJ MOHAN 2014.09.04 15:52 I attest to the accuracy and integrity of this document Chandigarh CR No.7378 of 2013 (O&M) -5-12. Since the suit is qua family dispute, early decision itself would be effective remedy. The lower Court is directed to decide the suit within six months from the date of receipt of copy of this order.
September 2nd , 2014 (Dr.Bharat Bhushan Parsoon)
Brij Judge
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. Whether to be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the Digest? Yes BRIJ MOHAN 2014.09.04 15:52 I attest to the accuracy and integrity of this document Chandigarh