Jit Singh vs Bhajan Singh And Another on 9 September, 2009

C.R.No. 4773 of 2004 (O&M)                                                 1

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH


                              Civil Revision No.4773 of 2004(O&M )
                              Date of Decision: September 9,2009



Jit Singh                                         ...........Petitioner


                              Versus


Bhajan Singh and another                          ..........Respondents


Coram: Hon'ble Mrs.Justice Sabina

Present: Mr.Ajay Pal Singh, Advocate for the petitioner
         None for the respondent.
                            --

Sabina, J. (oral)

This revision petition has been filed under Article 227 of the

Constitution of India seeking the quashment of the impugned order dated

7.8.2004 passed by the Civil Judge (Junior Division) Barnala.

Plaintiff-Bhajan Singh alias Kaka Singh and Bhupinder

Singh filed a suit for declaration declaring them to be owner in possession

of the suit land on the basis of judgment dated 28.3.1992 passed by the

Additional Senior Sub Judge Barnala and further that the sale deed dated

11.6.1996 suffered by their father Zora Singh in favour of Jit Singh was

illegal, ineffective and nullity. Notice of the suit was issued to the

defendant-petitioner- Jit Singh. During the pendency of the suit, petitioner

moved an application under Order 7 Rule 11 of the code of Civil Procedure

for rejection of the plaint. Vide impugned order dated 7.8.2004, the said

application was dismissed by the Civil Judge (Junior Division) Barnala.

Hence, the present revision petition.

C.R.No. 4773 of 2004 (O&M) 2

Learned counsel for the petitioner has submitted that since

the plaintiffs were seeking cancellation of the sale deed dated 11.6.1996,

they were required to affix ad valorem court fee. In support of his

arguments, learned counsel has placed reliance on the judgments Anil Rishi

vs. Gurbaksh Singh 1998(3) Civil Court Cases 78 (P&H) , Ranjit Singh

and others vs. Balkar Singh and another 2002(2) Civil Court Cases 504

(P&H) and Niranjan Kaur vs.Nirbigan Kaur Vol.LXXXIV-1982 PLR

127 wherein it was held that in a suit seeking declaration that the sale deed

in question was illegal null and void and was based on fraud, ad valorem

court fee was liable to be affixed.

In the present case, plaintiffs, who are minor, have filed the

suit through their mother for a declaration that they were owner of the suit

land and the sale deed executed by their father was without any legal

necessity.

It has been held by this Court in Ravinder Kumar vs.

Narinder Kumar (2007-2) 146 PLR 577 as under:-

“The learned trial Court came to the conclusion that in the suit

framed the petitioner has primarily claimed the relief of

cancellation of registered sale deeds in the suit for declaration

and, therefore, the case was not covered under Section 7(iv)(b)(c)

and, therefore, he was required to pay the Court fee on the sale

consideration as well as on the will dated 29.7.1990 as per the

prevalent rate of suit property. This finding of the learned Trial

Court cannot be sustained. The Court fee has to be assessed

keeping in view the suit as framed. The reading of the plaint and

the relief claimed would show that the plaintiff- petitioner has
C.R.No. 4773 of 2004 (O&M) 3

filed a suit for declaration with a consequential relief of

cancellation of decrees passed by the Court in which he is not a

party. Once the petitioner plaintiff was not party to the sale deeds

and was claiming ownership and consequential relief on the basis

of declaration prayed for,therefore, ad volerm Court fee was not

payable as he cannot be held to be bound by the act of third party.

Thus, the impugned order cannot be sustained”.

This Court in Prince Minor through his mother and

natural guardian Smt.Rekha vs. Suresh Kumar and others 2008(4)

RCR (Civil) 430 has held that ad volerm Court fee is not required in a case

where the plaintiff being co-parcener challenges the sale deed made without

legal necessity.

In the present case, the trial court vide impugned judgment

dated 7.8.2004 has dismissed the application seeking rejection of the plaint

on the ground that the plaintiffs had challenged the sale made by their father

without legal necessity and there was no question of payment of ad valorem

court fee. The view taken by the learned trial Court,thus, does not suffer

from any illegality and calls for no interference. The judgments relied upon

by the learned counsel for the petitioner failed to advance the case of the

petitioner as they are based on different facts.

Dismissed.

( Sabina )
Judge
September 9, 2009
arya