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Judgment
Gautam Kumar Choudhary, J
Heard, learned counsel for the parties.
Petitioners are the defendants and the instant CMP has been filed under Article 227 of the Constitution of India for quashing the order dated 18.03.2025 passed by Civil Judge (Jr. Division)-I, Chatra in MCA No.40 of 2023 (O.S. No.1 of 2016) whereby and whereunder the petition under Order VII Rule 11(b) CPC, 1908 has been rejected.
It is submitted by learned counsel for the petitioners that the aforesaid Suit has been filed, inter-alia, for the cancellation of the sale-deed in which the applicable Court fee will be ad-valorem as per Section 7(iv)(c) read with Section 7(v) of the Court Fee Act, 1870. Reliance is placed on the ratio laid down by the Apex Court in Suhrid Singh @ Sardool Singh vs. Randhir Singh & Ors. (2010) 12 SCC 112, wherein it has been held that in a suit for declaration that the deeds do not bind the “coparcenary” and for joint possession by a person who was not the executant of the sale deeds, court fees was computable under section 7 (iv)(c) of the Court Fees Act, 1870. It is contended that the ratio as laid down by the Apex Court in Agra Diocesan Trust Association vs. Anil David and Ors., in Civil Appeal No.1722 of 2020 (Arising out of SLP (C) No.18008 of 2019) is also to the same effect.
It is contended that the authority relied upon by the Court below will not be applicable in the present case.
It is argued by the learned counsel for the Opp. Parties/ plaintiffs that advalorem Court fees shall be applicable in cases where prayer is for cancellation of sale-deed or for recovery of possession. This reliefs have not been prayed in the present case. Consequently, Section 7(IV) of the said Act, 1870 will be applicable. Reliance is also placed on the following authorities :-
(a) 1982 SCC OnLine Pat.108
(b) 1957 SCC OnLine SC 24 at Para-14.
FINDING:-
Having considered the submissions advanced from both sides and the materials on record, it is apparent that the original suit no.1 of 2016 has been filed for the following reliefs:
A. A preliminary decree to the extent of 1/6th share of the plaintiff no.1, in the suit property be passed and a survey knowing Pleader Commissioner be appointed for carving out separate Takta of 1/6th share of plaint suit, land and accordingly final degree be prepared.
B. That alleged sale deed no.4239 dated 9.8.2004 executed by Etwa Devi in favour of defendant nos.4,6 and 8 be declared void ab-initio, forged, illegal without consideration and not binding upon the plaintiffs.
Law is settled that court fees depend on the relief claimed as per Section 7 of the Court Fees Act, 1870. Suit is valued by the Plaintiff, which is normally accepted in a suit under Section 7(iv)(b) or 7(iv)(c) of the Act which is final and conclusive. The Court has no jurisdiction to challenge the correctness of the valuation given by the plaintiff in view of the provision of Section 7(iv) of the Act. The question of court-fee must be decided having regard to the averments made in the plaint itself [see Kesho Mahton supra].
In the present case, the question is whether the fixed court fees will be charged as per the relief for partition or advalorem court fees for declaration of the sale deeds to void and not binding on the parties?
In the present case, as the suit is mainly for partition and for declaration that the sale deed executed with respect to part of the schedule property was not binding on the plaintiff, and there is no consequential prayer for recovery of possession, therefore, advalorem court fees will not be chargeable.
Law in this regard has been settled by the Apex Court in Suhrid Singh @ Sardool Singh (supra) held that 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. Advalorem court fees will be chargeable when the executant seeks cancellation of the sale deed, but where non-executant is in possession and sues for declaration that the deed is null or void, he has to pay only a fixed court fees and not ad valorem court fees.
Under the circumstance, this Court is of the view that advalorem court fees will not be chargeable in the present case, as neither cancellation of sale deed has been prayed for, nor any consequential relief for recovery of possession has been made.
Miscellaneous petition accordingly stands dismissed. Pending I.A., if any, also stands disposed of.