***

ALKA SARIN, J. –

1. The challenge in the present revision petition under Article 227 of the Constitution of India is to the order dated 10.01.2018 passed by the Trial Court whereby the application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short ‘CPC’) read with Section 151 CPC has been disposed off and the plaintiff-petitioner has been directed to affix court fee on the Collector rate of the suit property.

2. The brief facts relevant to the present lis are that the plaintiff-petitioner filed a suit for declaration to the effect that he is exclusive owner in possession of the suit property and that the sale deeds dated 02.11.1993, 30.12.1991 and 22.05.1992 and the subsequent mutations are illegal and void ab-initio. A decree for mandatory injunction and permanent injunction against the defendant-respondents was also sought. The plaintiff-petitioner is the father and the defendant-respondents are his sons. It is averred that the suit property was purchased by the plaintiff-petitioner in the names of the defendant-respondents from his own funds and no sale consideration was paid by them and that he was exclusive owner of the suit property.

3. An application was filed by the defendant-respondent no.1 under Order VII Rule 11 CPC for rejection of the plaint by the defendants-respondents inter-alia on the ground that the plaintiff-petitioner had failed to affix the ad valorem court fee on the market value of the suit property or on the value of the suit property as mentioned in the sale deeds. A reply was filed by the plaintiff-petitioner stating therein that the entire sale consideration was paid by him and at the time of execution of the sale deeds the defendant-respondents were minors and in view of the relief claimed the plaintiff-petitioner had affixed proper court fee.

4. Learned counsel for the plaintiff-petitioner has contended that the defendant-respondents were only trustees of the suit property it having actually been purchased by the plaintiff-petitioner and that the plaintiff-petitioner had also disinherited defendant-respondent no.1 and revoked the licence to retain possession and that the sale deeds never intended to actually transfer any right, title or interest in the suit property in favour of the defendant-respondents, hence, ad valorem court fee was not payable. Per contra, learned counsel for the defendant-respondent no.1 has submitted that in the suit the plaintiff-petitioner has also sought possession of the suit property though he has cleverly worded the plaint by seeking a decree for mandatory injunction directing the defendant-respondents to handover vacant possession of the suit property to the plaintiff-petitioner.

5. I have heard learned counsel for the parties.

6. According to the learned counsel for the plaintiff-petitioner the sale deeds never intended to actually transfer any right, title or interest in the suit property in favour of the defendant-respondents, the entire sale consideration was paid by the plaintiff-petitioner and that the defendant-respondents were in possession only as trustees, hence, no ad valorem court fee would be payable. Hon’ble Supreme Court in case of Suhrid Singh @ Sardool Singh vs. Randhir Singh & Ors. [2010(12) SCC 112] = 2012(2) L.A.R. 333 = (2010) Law Today Live Doc. Id. 12547 has held as under :

“6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' - two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non-est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If `B', who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B', a nonexecutant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an advalorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.”

7. The plaintiff-petitioner is the executant of the sale deeds as father of the defendant-respondents. The sale deeds bear his signatures and are registered documents. That being so, there is no escaping from the law laid down by the Hon’ble Supreme Court in case of Suhrid Singh @ Sardool Singh (supra). The argument raised by counsel for the plaintiff-petitioner that he is only seeking a decree of declaration and ad-valorem court fee is not to be affixed, is wholly untenable in law. It has clearly been held in the case of Suhrid Singh @ Sardool Singh (supra) that where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed and when a non-executant seeks annulment of a deed, he has to seek a declaration that it is invalid and non-est and once a person is an executant of the deed and seeks cancellation of the deed he is bound in law to pay ad-valorem court fee on the consideration stated in the sale deed. It is only a person, who is a non-executant and is in possession and sues for a declaration that the deed is null or void, who would not have to affix ad-valorem court fee and in case a person being a non-executant is not in possession, who seeks possession, in that case he would have to affix ad-valorem court fee.

8. Learned counsel for the plaintiff-petitioner has also contended that as per Section 7(v) of the Court Fee Act, 1870, in case of agricultural land, the market value shall be ten times the land revenue of the land and in the instant case also the suit property is agricultural land. Therefore, the Trial Court erred in directing affixing of court fee on the Collector rate of the suit property. Reliance was placed on Hardam Singh vs. Angrej Singh & Ors. [2014 (1) RCR (Civil) 929] = 2014(1) L.A.R. 562 = (2013) Law Today Live Doc. Id. 11945.

9. It is well settled that while deciding an application under Order VII Rule 11 CPC only the contents of the plaint or the documents annexed therewith are to be seen. A copy of the plaint has been placed on the record of the present civil revision petition and it does not mention anywhere that the suit property is agricultural land. Though the Trial Court in the impugned order mentions that the suit property is agricultural, learned counsel are unable to point out from the record of the present civil revision petition that the suit property is agricultural. Thus, this argument raised by counsel for the plaintiff-petitioner is also rejected.

10. In view of the above and keeping in view the law laid down by Hon’ble Supreme Court in case of Suhrid Singh @ Sardool Singh (supra), there is no illegality or error of jurisdiction in the impugned order dated 10.01.2018 passed by the Trial Court. I do not find any merit in the present revision petition and the same is dismissed. The plaintiff-petitioner is granted six weeks time from the date of passing of this order to affix the ad-valorem court fee on the Collector rate of the suit property. Pending applications, if any, also stand disposed off accordingly.

Petition dismissed.

********