Tara Singh and ors. vs Tarsem Singh and ors.

J.V. Gupta, J.

This petition is directed against the order of the trial Court dated 11th February, 1985, whereby the plaintiffs were directed to make up the deficiency in the courtfee.

The plaintiffs filed the suit for declaration to the effect that the sale deed dated 11th June, 1981 and 19th June, 1981, effected by Gurbaksh Singh defendant No. 4 in favour of Tarsem Singh, defendant No. 1, and his grandsons Raghbir Singh and Satnam Singh defendant Nos. 2 and 3, respectively, were sham, fictitious, illegal, void, ineffective and without legal necessity, and with a view to defeating, defrauding and debarring the rights of the plaintiffs and other coparceners in the coparcenary property of the joint Hindu family of the plaintiffs and the defendant. In the written statement filed on behalf of the defendants, one of the objections taken was that, in fact, the suit was for the cancellation of the sale deeds, and as such, ad valorem courtfee was required in the present case. Consequently, Issue No. 3 regarding valuation for purposes of courtfee and jurisdiction was treated as preliminary. After the parties had led evidence, the trial Court came to the conclusion that the plaintiffs were to pay ad valorem courtfee on the sale consideration of Rs. 92,000/. Since the plaintiffs had paid only Rs. 39/ as courtfee they were directed to make up the deficiency.

Learned counsel for the petitioners contended that the suit is not for cancellation of the sale deeds but is simply a suit for declaration so as not to affect their rights as the sale deeds are without any legal necessity. In support of his contention, he referred to Jai Krishna Das v. Babu Ram, A.I.R. 1967 Pb. 263, and Niranjan Kaur v. Nirbigan Kaur, A.I.R. 1981 Pb. & Haryana 368 (Full Bench decisions) whereas, the learned counsel for the respondents relied on Jugal Kishore v. Dr. Pirbhu Dayal, 1980 P.L.R. 717.

After hearing the learned counsel for the parties, I am of the considered view that the suit cannot be treated to be for cancellation of the sale deeds. Admittedly the plaintiffs are not a party to the sale deeds as such, and, therefore, the question of their cancellation did not arise. The plaintiffs wanted to avoid the sale deeds as not to affect their rights, the property being of the joint Hindu family and the sale being without any legal necessity. Under the circumstances, the view taken by the trial Court was wrong and illegal. It has been held in Jai Krishan Das''s case (supra) that the relief prayed in the plaint alone determines the nature, and the Court is not empowered to go behind the plaints for determining the courtfee. Consequently, this petition succeeds, the impugned order is set aside as the suit has been properly valued for the purposes of courtfee and jurisdiction. The trial Court will now proceed with the suit on merits in accordance with law.

The parties, through counsel, are directed to appear in the trial Court on 30th May, 1986.