Mohan Singh vs Smt. Balbir Kaur etc.

Harbas Lal, J.—The question to be determined in this revision petition is as to what amount of court fee the plaintiff-petitioner is liable to pay in the suit filed by him in the Court of the Subordinate Judge 1st Class, Fatehabad. In order to appreciate the real nature of the controvery involved, the relevant facts may be summarised.

The plaintiff petitioner was allotted the suit land by the Custodian One Lal Singh (now deceased) wanted to purchase the same and had entered into an agreement of sale with the plaintiff-petitioner. However, as permanent rights of ownership relating to the said land bad not yet been conferred on the plaintiff-petitioner, he agreed to transfer the same after the conferment of such rights. The said Lal Singh succeeded in persuading the plaintiff-petitioner to execute a Mukhtiarnama (special power of attorney) in his favour on the plea that he will be able to get the case regarding conferment of ownership rights decided successfully from the Custodian in favour of the plaintiff-petitioner. Thereafter, Lal Singh dishonestly and clandestinely executed a sale deed on August 5 1968, in favour of his grand daughter, Balbir Kaur (now respondent No. 1). After coming to know of the fraud played on him in April, 1971, the plaintiff-petitioner fried the suit for possession of the suit land through cancellation of the sail sale deed seeking declaration to the effect that the sale deed, in question, was based on fraud and was liable to be cancelled. The suit was contested by the vendee and on the pleadings of the parties, a number of issues were framed relating to the validity of the Mukhtiarnama, the sale deed and the locus standi of the plaintiff-petitioner to file the suit. Issue No. 5 was to the effect whether the suit was not properly valued for the purpose of court fee and jurisdiction. Though the entire evidence was adduced by both the parties, the suit was not decided finally as the trial court held that the plaintiff-petitioner was liable to pay court-fee advalorem on the price of the land which was Rs. 30,000/- according to the sale deed under Schedule 1 Article I of the Court Fees Act, (hereinafter called the Act) The plaintiff-petitioner was thus, directed to make good the deficiency on or before July 20, 1977, and the case was fixed for pronouncement of the order on July 21, 1977. It is this finding relating to the court fee which has been challenged in the present revision petition.

It is not disputed on either side that before the plaintiff-petitioner can succeed in his claim for possession of the suit land, he must get a declaration that the sale deed, in question, was invalid and vitiated and did not stand in his way in getting the suit land. According to the learned counsel for the plaintiff petitioner, it is quite clear from the averments in the plaint that the suit was not merely for possession simpliciter, but for declaration for getting the sale-deed set aside and possession as a consequential relief. In these circumstances, the plaintiff petitioner was entitled to fix the amount for the purpose of court fee u/s 7(iv)(c) of the Act and not liable to pay the same on the price of the land as mentioned in the disputed sale deed. In sup port of this proposition, reliance has been placed on the Full Bench decisions of this Court as reported in Vishwa Nath and another v. Smt. Sita Bai Anand and others (1952) 754 P.L.R. 335, Parbhu and others v. Girdhari AIR 1965 P&H. 1, and one decision by the Division Bench in S. Tarlok Singh S. Sant Singh and Others Vs. Sardarni Daljit Kaur,

In Vishwa Nath''s case (supra), the following question was referred for decision by the Full Bench:--

Whether the valuation of the court fees of a suit to set aside a decree where in execution of such decree property has been sold and possession given, and where recovery of possession given, and where recovery of possession of the property so sold is sought in the suit, falls u/s 7(iv)(c) of the Court Fees Act, and if not what court fee is payable ?

After discussing the decisions of the various High Courts including that of the Lahore High Court, it was held:--

There is, therefore, preponderance of authority in favour of the view that where a plaintiff prays for possession of property which has been sold in execution of a decree by a competent court, he must also ask for a declaration that the decree is not binding upon him and his suit, therefore, falls u/s 7(iv)(c) of the Court Fees Act,

It was further held after discussing sections 8 and 9 of the Suits Valuation Act, that the court fee is payable on the value of the relief as fixed and stated by the plaintiff.

In Parbhu''s case (supra) it was held that a suit for declaration that the previous decree for partition to which the plaintiff was was purity was null and void and for reopening of partition, was governed by section 7(iv)(c) of the Act.

In Tarlok Singh''s case (supra), the suit was for declaration that the succession certificate granted to the defendant was null and void, and for possession of movable property given to the defendant in pursuance of the court''s order. The Division Bench relying on Vishwa Nath''s case (supra), held that the legal impediment in the way of the plaintiff was that the defendant was in possession of the suit property under orders of the court. Until the same was removed, the plaintiff was not entitled to the relief of possession. As such, the suit was for declaration with a consequential relief as envisaged u/s 7(iv)(c) of the Act. It was also held that the court was bound to accept the valuation put on his relief by the plaintiff however arbitrary it might be.

So far as the question relating to the amount on which the court fee has to be paid regarding the agricultural land assessed to land revenue is concerned, the matter stands settled by a Full Bench decision of this Court in Gurdial Singh v. Balwinder Singh 1971 P.L.R. 716 where in it was held:--

In cases which are covered by section 7(iv)(c) of the Act, the court fee has to be paid at 10 times the land revenue assessed on the land and not at 40 times.

According to the learned counsel for the respondents, the suit of the plaintiff petitioner, as framed was not for declaration with consequently relief, but only for possession. In this regard, he drew pointed attention to the relief claimed in the prayer clause in the plaint. The argument appears to be that if the plaintiff petitioner does not frame his suit in such a manner which may show that he had filed the suit for declaration with consequential relief in so many words, and in the end, possession is claimed the suit has to be treated as one for possession by setting a aside the sale or the transfer, as the case may be, and the case in these circumstances, will not fall u/s 7(iv)(c) but under the residuary article I in Schedule I of the Act. Reliance for this proposition has been placed on a Full Bench decision of this Court in Jai Krishana Das and others v. Babu Ram and others (1967) P.L.R. 69 26. In the afore said case, it was held that for the purpose of determination of the question relating to court fee, relief actually claimed in the plaint in a particular case is the determining factor and is the plaintiff omitted to ask for a consequential relief, it is not for the Court to import into the plaint or to read into it any relief which has not been asked for by the plaintiff only in order to levy higher court fee. However, it was also held:--

The body of the plaint has to be seen in order only to construe the prayer and not in order to spell out of the prayer something which is not contained in it even by implication or to enlarge its scope so as to entitle the plaintiff to ultimately succeed in the suit on proving the facts alleged by him.

Their Lordships of the Supreme Court in Shamsher Singh Vs. Rajinder Prashad and Others, as made the position absolutely clear be yond the pale of controversy. It has been held therein as under:--

The court in deciding the question of court fee should look into the allegations in the plaint to see what is the substantive relief that is asked for. Mere astuteness in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for.

If the averments in the plaint filed by the plaintiff petitioner in the present case are perused, it is clear beyond any doubt that the case of the plaintiff-petitioner is that he wanted a declaration to the effect that the the alienation made by Lal Singh as hit attorney in favour of his grand daughter was void being based on fraud and not binding on the plaintiff petitioner and that a decree for possession of the suit land be passed in his favour. Unless the alienation, in dispute, was set aside, the plaintiff-petitioner will not be entitled to the possession of the suit land. Thus, clearly, prayer for possession is consequential to the one for declaration to set aside the alienation.

According to the learned counsel for the respondents, the consistent view of this Court has been that in these circumstances, advalorem court fee on the market value of the property for which possession is sought has to be paid. He has relied upon a number of decisions which may be perused.

In Jagat Singh v. Avtar Singh and others 1971 C.L.R. 10, Pandit, J., (as he then was), held that the plaintiff had to get the alleged gift deed, to which he himself was a party, cancelled before he could seek possession of the land. The case, was, therefore, covered by Article I, Schedule I of this Act, and the plaintiff has to pay advalorem court fee on the value of the property. For this proposition, the learned Judge relied upon a number of decisions, but it appears that the Full Bench decisions and the Division Bench decision of this Court as reported in Vishwa Nath''s case (supra), Prabhu''s case (supra) and Tarlok Singh''s case (supra), were not brought to the notice of the Court as the same were not considered at all in the judgment. The same is the position regarding Man Singh v. Shiv Karan and others 1971 Rev. L.R. 200, Amar Kaur and others v. Parkash Chand and others 1974 C.L.J. 71 and Gobind Kaur v. Pritam Singh and another 1975 Rev. L.R. 553, in none of which there is any reference to any of the above referred two decisions of the Full Bench or the Division Bench of this Court. In Mst. Nand Kaur and others v. Gurdev Kaur and others, I followed the view as held in Jagat Singh''s case (supra) and Gobind Kaur''s case (supra). However, in view of the ratio of the decisions in two cases decided by the Full Benches and one case decided by the Division Bench of this Court, as referred to above, it has to be held that in cases where the plaintiff must get an alienation to which he was a party or any order of any Court or authority, prejudicial to his interest or right, set aside before getting possession of the suit property, the suits falls u/s 7(iv)(c) and is in substance for declaration with consequential relief. The present case clearly falls under this category.

Thus, the plaintiff-petitioner was entitled to fix his own value for the purpose of court-fee. As the suit property in the present case pertains to agricultural land which is assessed to land revenue, the value for the purpose of court fee will be 10 times the land revenue. On this basis, the proper court fee was paid by the plaintiff-petitioner In this view of the matter, the case of the plaintiff-petitioner does not fall under Schedule I Article I and he is not liable to pay the court fee on Rs. 30.000/- which is the price of the suit property according to the sale deed, in dispute.

For the reasons mentioned above, the impugned order is set aside and it is held that the court fee was properly paid by the plaintiff-petitioner.