Punjab-Haryana High Court
Harmail Singh vs Gurmail Singh And Others on 27 July, 2009
Author: A.N. Jindal
Bench: A.N. Jindal
In the High Court of Punjab and Haryana at Chandigarh
Civil Revision No. 7203 of 2008
Date of decision: July 27, 2009
Harmail Singh
.. Petitioner
Vs.
Gurmail Singh and others
.. Respondents
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. N.K. Sanghi, Advocate for the petitioner.
Mr. Tarsem Singh, Advocate for the respondents.
A.N. Jindal, J
An application under Order 7 Rule 11 CPC, filed by the
defendant-respondent for paying ad-valorem court fee over the suit for
declaration and permanent injunction has been accepted and the plaintiff
was ordered to pay ad-valorem court fee.
To decide the question of court fee, it would be essential to
reproduce the claim set up by the plaintiff in his suit.
The plaintiff has sought cancellation of the sale deed No.590
dated 24.5.2004 executed by the defendants No.3 and 4 in favour of
defendants No.1 and 2 for sale of the land measuring 82 kanals 11 marlas
saying that the same are illegal, null and void, in operative and not binding
qua the rights of the plaintiff. Similarly, he has also claimed that the
plaintiff is owner in possession of one plot measuring 29' x 72' as fully
detailed in the head note of the plaint, on the ground that the sale deed qua
the said house is illegal, null and void. Consequently, the suit for
permanent injunction restraining the defendants No.1 and 2 from
interfering in peaceful possession of the plaintiff or demolishing any part of
the house has also been sought.
The plaintiff claimed the suit property to be joint Hindu family
property on the ground that the plaintiff, defendants No.1, 2 and 5 and their
parents had purchased the suit land by an unregistered sale deed from
defendants No.3 and 4 and they were delivered possession at the time of
sale. Thereafter a family settlement took place between the plaintiffs and
Civil Revision No. 7203 of 2008 -2-
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the defendants No.1, 2 and 5, wherein, the defendants No.1, 2 and 5 settled the house measuring 29'x 72' upon the plaintiff out of the suit land measuring 1 kanal 9 marlas. The said family settlement was reduced into writing on 1.8.1990. Thus, the plaintiff claim their ownership over the suit property on the basis of the acquisition by way of family settlement, out of the total joint property. Consequently, he has also challenged the sale deed dated 24.5.2004, qua the suit house and stated that the defendants No.3 and 4 had no right to execute the said sale deed in favour of the defendants No.1, 2 and 5.
From the aforesaid facts of the case, the petitioners have articulate right in the property and on the basis of the said rights, they have claimed ownership over the same and challenged the sale deed as nonest in the eyes of law. Reading of the plaint and the relief claimed would show that the petitioner had filed a suit for possession with consequential relief of cancellation of the sale deed to which the petitioner was not a party. Full Bench of this Court in case Niranjan Kaur vs. Nirbhigan Kaur, 1982 P.L.R. 127 observed as under :-
"9. In a suit to obtain declaratory decree where no consequential relief is prayed, sub-clause (iii) of article 17 of schedule II of the Act, will be applicable, but the suit filed by the plaintiff-petitioner was virtually, to all intents and purposes, for the cancellation of the sale deed, executed by her, in favour of the defendant-respondent. She cannot claim possession unless the said deed is cancelled by a decree of the Court. To say in the plaint, that it be declared that the sale deed, got executed from her as a result of the fraud, was void and not binding on her, does not convert the suit into one for a declaration with the consequential relief of possession so as to fall within the provisions of Section 7 (iv) © of the Act. To such a suit, the only article applicable article 1, Schedule I of the Act, and for that proposition, further support can be had from a Full Bench decision of the Allhabad High Court in Kalu Ram's case (supra) also wherein as regards the valuation of Civil Revision No. 7203 of 2008 -3- *** the relief as to the cancellation of the alienation, it has been held that such a relief falls neither under Section 7 (iv) © nor under Schedule II article (iii), but under the residuory article I, Schedule I of the Act."
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 itto be illegal and not binding qua his rights. Section 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 vs. Jaswant Singh, 2006 (4) R.C.R. (Civil) 563; Ravinder Kumar vs. Narinder Kumar and Ors. 2007 (2) R.C.R. (Civil) 1; and Teja Singh vs. Smt. Amar Kaur and Ors. 2008 (1) Civil Court Cases 531.
In the present case also, no substantial relief of possession has been claimed and while pleading the suit property to be joint Hindu family property sought declaration regarding cancellation of the sale deed, no ad- valorem court fee is required.
For the foregoing reasons, I accept this petition, set aside the impugned order (Annexure P-3) and dismiss the application of the respondent.
July 27, 2009 (A.N. Jindal) deepak Judge