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63. So far as payment of court fees is concerned, the learned trial court held that since only return of aforesaid sale deeds were sought and no recovery of possession was sought, a total of only Rs. 250/- as court fees has been paid. However, the learned trial court held that since the suit was not maintainable the issue was decided accordingly. This Court has held while deciding point of determination no. (i) and (ii) that the suit was maintainable and the plaintiffs had a valid cause of action. This Court is of the considered view that the learned trial court has rightly held that the suit was not under-valued and since only return of aforesaid sale deeds were sought and no recovery of possession was sought, a total of only Rs. 250/- as court fees has been paid. This Court is of the considered view that since only return of aforesaid sale deeds was prayed in the plaint and neither recovery of possession nor a declaration that the sale deeds were void was sought, the ad-valorem court fees was not payable and a total of only Rs. 250/- paid as court fees was sufficient. The case of the plaintiffs was that since the consideration was not paid in terms of the sale deeds, the sale deeds were void but no declaration was sought to declare the sale deeds as void and primarily the prayer was to return the sale deeds by submitting that the sale deeds were void. This Court is of the considered view that the suit was properly valued and the court fees was also properly paid as neither a relief was prayed seeking a declaration that the sale deeds were void nor any relief seeking recovery of possession was prayed for in the plaint and the 2026: JHHC: 7078 prayer was to return the original sale deeds. The point of determination no. (iv) is accordingly decided in favour of the plaintiffs- appellants and against the defendant-respondent.

In the judgement reported in (1973) 2 SCC 60 (supra) relied upon by the defendant, the plaintiffs sought a declaration that they are the sole owners of the suit property but did not claim recovery of possession, the suit was held to be barred under section 42 of the Specific Relief Act, 1877 (corresponding to section 34 of the Specific Relief Act, 1963). In view of the relief prayed for in this case seeking return of the two original sale deeds by asserting that the deeds were void, the said judgement does not apply. If the deeds are void, the recitals of the deeds are of no consequence.

65. In the present case, a prayer was made seeking return of the sale deeds and a plea was raised that the sale deeds were void-ab-initio for want of consideration as the cheques mentioned in the sale deed were returned to the defendant at the instance of the defendant and the defendant in the written statement, paragraph 10, admitted the fact of return of cheques and raised a plea that the consideration was subsequently paid to the plaintiffs/their relatives through cash/banking transaction and thus admitted that the consideration as per the sale deeds through cheques, mentioned in the sale deeds, were not paid. In such circumstances, there was no need for the plaintiffs to seek a declaration that the sale deeds were void as apparently, they were nullity in the eyes of law as consideration did not pass as per the terms of the sale deeds having recitals that the consideration was paid through the cheques. The aforesaid aspect of the matter has not been properly considered by the learned trial court. This Court is of the considered view that the relief prayed in the present suit did not amount to seeking declaration of title by the plaintiffs as the plaintiffs simply prayed for return of the void sale deeds and accordingly the suit was not barred by Section 34 of the Specific Relief Act, 1963 on account of the fact that the plaintiffs did not 2026: JHHC: 7078 seek recovery of possession. The point of determination no. (iii) is accordingly decided in favour of the plaintiffs (appellants) and against the defendant (respondent).

Point of determination no. v.

Whether the present title suit is bad owing to withdrawal of the title suit no. 74 of 2015 filed earlier by the plaintiffs?

66. This Court finds that the earlier suit was filed seeking cancellation of the sale deeds and the plaint has been marked as exhibit-E and in the said title suit also the plaintiffs had taken a specific plea in paragraph 13 that the plaintiffs did not receive the consideration money by cheques as mentioned in the sale deeds and the sale deeds were null and void and also asserted in paragraph 14 that the plaintiffs were in possession of the property and the sale deeds were not acted upon. The said suit was withdrawn vide order dated 20.08.2016 (exhibit- D) at the very initial stage with a liberty to file a fresh one in respect to the same cause of action and consequently, the present suit was filed. However, in this suit no relief was prayed to declare the sale deeds null and void and it was pleaded that the sale deeds were without consideration and hence they were null and void. This Court finds that the present suit was not bad owing to withdrawal of the Title Suit No. 74 of 2015 filed earlier by the plaintiffs once the liberty was given to the plaintiffs to file a fresh suit arising from the same cause of action. The law is well settled that if the deed is void-ab-initio or is void, the same need not be set-aside as it would be a nullity in the eyes of law [reference Prem Singh versus Birbal reported in (2006) 5 SCC 353]. The learned trial court held that the earlier plaint, Exhibit E showed that the same was filed for cancellation of the very sale deeds that was sought to be returned by way of the present suit and held that since the present suit has been held to be not maintainable while deciding issue no.(i) hence this issue was decided accordingly. This court has already held as above while considering point of determination no. (i) and (ii) that the present suit is maintainable and there was a valid cause of action to file the present suit. In view of the order seeking withdrawal of the earlier suit giving liberty to the plaintiffs to file a fresh suit on the very same cause of action, this Court 2026: JHHC: 7078 holds that the present suit is not bad owing to withdrawal of the title suit no. 74 of 2015 filed earlier by the plaintiffs. The point of determination no. (v) is accordingly decided in favour of the appellants (plaintiffs) and against the respondent (defendant).