Smt. Santosh Rani @Santosh Kumari vs Mukesh Kumar and Another

Ram Chand Gupta, J.—The present revision petition has been filed under Article 227 of the Constitution of India against order dated 22.01.2010, Annexure P1 passed by learned Civil Judge(Junior Division), Ambala vide which it has ordered Respondent-Plaintiff to pay ad-valorem court fee on the gift deed.

I have heard learned Counsel for the parties and have gone through the whole record including the impugned order passed by learned trial Court.

Brief facts relevant for the decision of the present revision petition are that, the present dispute is between mother and her sons regarding the property left by Krishan Lal, husband of Petitioner-Plaintiff and father of Respondents-Defendants. Suit has been filed for possession of land measuring 15 Kanals 8 Marlas by mother of Respondents on the ground that gift deed dated 17.08.2004 alleged to be executed by her is forged and fictitious document obtained by playing fraud upon her. Application, Annexure P2 was filed by Respondents-Defendants praying dismissal of the suit on the ground that court fee has not been affixed as per valuation of gift deed, which was allowed by learned trial Court vide impugned order and present Petitioner-Plaintiff has been directed to affix ad-valorem court fee. The impugned order dated 22.01.2010 reads as under:

This order shall dispose of an application for dismissing the suit of Plaintiff for not paying the ad-valorem court fee on the relief claimed. He averred that the Plaintiff has challenged the Gift deed dated 17.08.2004 registered on 20.08.2004, Perlekh No. 853, on the ground of fraud and misrepresentation, but has not fixed the proper court fee, as per the valuation of the gift deed. Reply to the said application not filed. Arguments heard. Perusal of file reveals that the Plaintiff has filed the present suit seeking the relief of declaration to the effect that the Gift deed dated 17.08.2004 attested and registered on 20.08.2004, alleged to be executed by the Plaintiff in favour of Defendants, being a forged and fictitious document obtained by Defendants by playing fraud on the Plaintiff and further that the mutation No. 381 got sanctioned by the Defendants on the basis of alleged Gift deed with a consequential relief of Permanent Injunction. As per the provisions of the Court Fees Act, when the Plaintiff is seeking possession of the land and have challenged the Gift-deed or sale-deed, than he is required to pay the ad-valorem court fee. Accordingly, he is hereby directed to pay the ad-valorem court fee on the relief claimed on or before 13.02.2010.

It has been vehemently contended by learned Counsel for the Petitioner that in a suit for possession of land, which is not situated in the municipal limits or abadi-deh as per the amendment made by Govt. of Haryana in the Court Fees Act, 1870, the court fee is to be affixed according to the value of the land as Rs. 60/-per acre; Rs. 50/-per acre and Rs. 30/-per acre as per the nature of the land and that hence, in a suit for possession court fee is to be affixed on the market value of the land so assessed and not on the value of the sale deed or gift deed alleged to be executed. He has placed reliance upon 2010(1) Law(P&H) 298,Sohan Lal v. Manujal Mittal @Manu Ran and others. 2010(1) Law(P&H) 298

Learned Counsel for Respondent No. 2 has not been able to contest this legal proposition as argued by learned Counsel for the Petitioner.

Section 7(v) of the Court Fee Act, 1870 as amended by State of Haryana reads as under:

Computation of fees payable in certain suits. -The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:

(i) to (iv) xx xx xx (v) for possession of land, houses and gardens. -In suits for the possession of land, houses and gardens, according to the value of the subject matter; and such value shall be deemed to be, (a) where the subject matter is land other than land situated within municipal limits or Abadi Deh whether under cultivation or not according to the market value thereof which shall be deemed to be,

(i) in the case of land which is irrigated by perennial canal, sixty rupees per acre;

(ii) in the case of land which is irrigated by non-perennial canal or by well, fifty rupees per acre; and

(iii) in the case of land which is Barani, Sailab, Bud, Thur, Sem, Banjar or of like nature, thirty rupees per acre; and

(b) where the subject matter is house, garden, or land situated within municipal limits or Abadi Deh whether under cultivation or not, according to its market value.

Hence, in view of the aforementioned provision, learned trial Court has erred in directing the Petitioner-Plaintiff to affix ad-valorem court fee on the value of the gift deed. On similar facts, coordinate Bench of this Court in Sohal Lal (supra) has observed that in a suit for possession of land, which is not in municipal limits or Abadi Deh court fee is to be affixed accordingly to the value to be assessed as per the amendment in Section 7(v) of the Act. Hence, the impugned order passed by learned trial Court directing the Petitioner to affix the ad valorem court fee on the value of the gift deed, is without considering the said provision of law. Hence, the same cannot be sustained in the eyes of law.

Hence, in view of these facts, the present revision petition is accepted and the impugned order, Annexure P4 is set aside.

Learned trial Court is directed to take into consideration the fact of aforementioned amended provision of law and permit the present Petitioner-Plaintiff to affix the ad valorem court fee in accordance thereof and proceed further with the suit as per law.