Surendra Sharma vs State of M.P.

This civil revision has been filed under Section 115 of the Code of Civil Procedure against the order dated 06.04.2011 passed by I Civil Judge, Class-II, Ratlam in Civil Suit No.59-A/09, whereby the trial Court rejected the application preferred by the applicants under Order 7 Rule 11 CPC.

Brief facts which are relevant for the disposal of this revision petition are that non-applicants No.1 & 2/plaintiffs filed Civil Suit No.59-A/09 for declaration, possession and partition of the suit land averring that suit land survey no. 485/1 measuring 1.620 hectare situated at Village Dharad District Ratlam earlier belonged to the Late Ata Mohammad, Non applicant/plaintiff No.1 and applicant No. 2 to 4 are the sons and applicant No.5 is the daughter and applicant No. 1 is the widow of the Late Ata Mohammad. So after the death of Ata Mohammad they are the joint owners of suit land. In the suit land applicant No.1 is having 1/8th share and in the remaining part of suit land applicant No.2 to 4 and non- applicant No.1 have 2/9th share each and applicant No.5 has 1/9th share. But applicant No. 1 to 5 wrongly sold some specific part of suit land measuring 1.350 hectare to applicants No.6 to 9 without partition and in the garb of said sale applicant No.6 to 9 have illegally occupied some part of the suit land. So it be declared that non- applicant has 2/9 th share in the suit land which will be separated and also restrained the applicants to interfere in the possession of non- applicants in suit land.

During trial of the suit applicants/defendants No.1 to 9 filed an application under Order 7 Rule 11 CPC before the trial Court averring that since the non-applicants/plaintiffs sought declaration regarding suit land and objected to the sale deed of value Rs.5,07,000/-, so the suit is required to be valued as per the sale consideration of the sale deed i.e.Rs.5,07,000/-. Likewise, the non-applicants/plaintiffs also sought the relief of declaration, injunction and possession as they are not in possession of the suit land, so they are also required to value the suit for injunction according to the market value of the suit land and bound to pay ad valorem Court fees on that valuation. Non-applicant No.2/plaintiff is not having any lien in the suit property, therefore, his suit is not maintainable and prayed for rejection of the suit.

However, learned trial Court vide order dated 30.03.2009 rejected the application under Order 7 Rule 11 CPC. Being aggrieved by that order, applicants/defendants filed civil revision No.105/2009 before this Court and vide order dated 08.09.2010 this Court had remanded the matter to the trial Court for deciding the objections raised by the defendants afresh. The relevant portion of the order dated 08.09.2010 reads as under:

"Shri A.S.Garg, learned senior counsel for the petitioners stated that the sale deed which was sought to be declared as null and void by the plaintiff pertained to a property sold for a consideration of Rs.5,07,000/- and even if the plaintiff was not a party to the said sale deed and was not required to pay the ad valorem Court fee, the suit was required to be valued as per the sale consideration.

Apparently, the aforesaid question has not been gone into by the learned trial Judge. Consequently, without offering any comments on the aforesaid issue, I deem it appropriate to set aside the order dated March 30, 2009 passed by the trial Judge. The trial Judge is directed to redetermine the aforesaid objection raised by the defendant-petitioners."

In compliance of the order dated 08.09.2010, learned trial Court again decided the objections raised by the defendants vide order dated 06.04.2011 and again rejected the objection raised by the applicants that non- applicant/plaintiff is bound to value the suit according to the value of the sale deed and for the relief of injunction non- applicant/plaintiff is also bound to value the suit according to the market value of the suit land on which injunction was sought by the plaintiff. Being aggrieved by that order, applicants/defendants in the second round of litigation approached this Court by way of this revision petition.

Learned counsel for the applicants submitted that in the plaint non-applicants objected to the sale deed of suit land executed by the applicants No.1 to 5 in favour of applicants No. 6 to 9 therefore, plaintiff is required to value the suit according to the sale consideration of the sale deed and liable to pay ad valorem Court fee accordingly. Similarly, plaintiffs are not in possession of the suit land and sought a relief of permanent injunction, hence for the relief of injunction the suit is required to be valued as per the market value of the suit land and liable to pay ad valorem Court fee. The contention of the learned counsel for the applicants is that learned trial Court committed an error of law in rejecting the prayer made by the applicants without paying attention to all these facts.

This Court has gone through the record as well as the arguments advanced by the learned counsel for the parties. It appears from the record that non-applicant/plaintiff filed the suit for declaration that non-applicant No.1 Sarfraj is the owner of 2/9th share in the suit property and for the consequential reliefs of partition, possession and injunction. He did not seek the relief of declaring the sale deed executed by applicants No.1 to 5 in favour of applicantS No.6 to 9 as void so non-applicants are not bound to value their suit according to the value of the sale deed. Even otherwise Non applicant No.1 was not a party to the sale deed, therefore, he is not required to value the suit according to the value of the sale deed and as the suit property is agricultural land, therefore, for the relief of injunction he is not required to value the suit as per the market value of the suit land.

Although in this regard counsel for the applicants placed reliance over the decision of the apex Court in the case of Suhrid Singh @ Sardool Singh vs. Randhir Singh & ors. reported in AIR 2010 SC 2807 and decisions of this Court in the case of Allahbelli, Bharekhan vs. Smt.Khatoon Bi, Abdul Rauf & anor. reported in AIR 2012 MP 119 and in the case of Tarun Malkapurkar vs. Jitendra Agrawal & ors. reported in AIR 2012 MP 118 but the said decisions are distinguishable as the facts of those cases do not match with the instant case. In the case of Suhrid Singh @ Sardool Singh (supra) the suit was filed by the son seeking the relief that the sale deed executed by his father be declared as null and void, therefore, he was bound by that sale deed but in the present case non-applicant was not a party to the sale deed. In the case of Allahbelli, Bharekhan (supra) this Court had only directed to put valuation of the suit property for declaring the sale deed void as the plaintiff was praying for a decree of possession while in this case non-applicant valued the suit at Rs.4,000/- for possession only and in the case of Tarun Malkapurkar (supra) this Court had only held that petitioner was free to value the suit as per the subject matter but at the same time it is required to be just and proper, hence the reliance placed by the applicants is of no avail.

The Full Bench of this Court in the case of Sunil Radhelia and others vs. Awadh Narayan and others reported in I.L.R (2010) M.P 2454 held that as per Section 7(iv) C and Article 17 Schedule II of the Court Fees Act (7 of 1870), if the plaintiff makes an allegation that the instrument is void and hence not binding upon him, then ad valorem Court fee is not payable and he can claim declaration simpliciter from the Court. In the instant case, non applicant neither executed the sale deed nor was a signatory to the same.

Since the non-applicants were not party to the sale deed, they were not required to value the suit as per the valuation of the sale deed for getting declaration that the sale deed is not binding on them and not required to value the suit at the market value of such land for getting the declaration as the owner of the suit land or for getting injunction as well as possession of the suit land.

This Court in the case of the Mulchand vs. Mst.Khushedbi reported in AIR 1984 MP 32 held that suit for declaration of land separately assessed to land revenue valuation cannot be more than twenty times of land revenue. Since the non-applicants filed the suit for declaring them as owners of the suit land which is assessed to land revenue they are not required to value the suit according to the market value of the suit land. Thus, trial Court did not commit any mistake in rejecting the applicant''s objection that non-

applicants are required to value the suit at the value of the sale deed.

Learned counsel for the applicants also submitted that during trial of the suit non-applicant sold his share in the suit property, therefore, the suit is not maintainable. In this regard, he also placed reliance on the Apex Court judgment passed in the case of Shipping Corporation of India Ltd. vs. Machado Brothers and others reported in (2004) 11 SCC 168 and this Court''s judgment passed in the case of Akbar Khan (deleted) Raeesa Bi d/o Akbar Khan and others vs. Faridabi w/o Shabbir Khan and others reported in 2012 (2) MPLJ 105. Whether non-applicants sold their share during the pendency of suit is a matter of fact which is not the subject matter of this revision petition and applicants are free to raise this objection before the trial Court. Hence, the petition has no merit and is hereby dismissed.