Narendra Prasad Tiwari vs Homeshwar Prasad Tiwari

Heard.

This petition has been preferred by the petitioner/plaintiff against the order dated 24.9.2019 passed in Civil Suit No.25-A/2017 by the District Judge, Baloda Bazar, whereby, the petitioner/plaintiff has been directed to pay ad-valorem court fees in accordance with the impugned sale-deed.

Brief facts of the case are that the petitioner/plaintiff has filed a suit for declaration and permanent injunction. The plaintiff and defendant No.2 are brothers. The suit property was inherited by the mother of the plaintiff and defendant No.2 namely Bhuneshwari from her late father Ganesh Ram. However, defendants 1 & 2, in a fraudulent manner, without any consideration being paid, executed the sale-deed through Bhuneshwari (mother) on 16.4.2014. After some days, Bhuneshwari died. Thereafter, the petitioner filed a civil suit claiming that he is having title over the half portion of the suit property, which has been acquired in a fraudulent manner by defendant No.1 and his son (defendant No.2), and he paid the fixed court fees. However, by the impugned order, the trial Court has directed to pay the advalorem court fees on the impugned sale-deed.

Learned counsel for the petitioner would submit that the impugned order is erroneous. Since the plaintiff was not the executant of the sale-deed, he was not required under the law to seek cancellation of the same and thus, he is not required to pay the ad valorem court fees. He places reliance on the judgment rendered by the Hon’ble Supreme Court in the matter of Suhrid Singh alias Sardool Singh Vs. Randhir Singh and others, (2010) 12 SCC 112 and submits that though issue No.2 has been framed to decide the possession of the plaintiff, however, before conclusion of trial, vide the impugned order, trial Court held that the plaintiff is not in possession of the suit property. Hence, learned counsel prays to quash the impugned order.

Per contra, learned counsel for respondents 1 & 2 would support the impugned order and submit that since the plaintiff/petitioner is not claiming any independent title over the suit property and further, he is also not disputing that Bhuneshwari (mother) was the exclusive owner of the suit property, the impugned sale-deed is not void ab initio. The petitioner/plaintiff is claiming declaration of title in respect of half of share in the suit property through his late mother - Bhuneshwari and he is alleging that proper consideration has not been paid and fraud has been committed with his mother and therefore, he is a deemed party to the impugned sale-deed. He further submits that the trial Court has rightly directed for payment of ad valorem court fees in view of the proposition of law laid down in the matter of Suhrid Singh alias Sardool Singh (supra). He lastly submits that the petition has no merits and the same is liable to be dismissed.

Having considered the submissions of learned counsel for the parties and also considering the averments made in the plaint, which would show that the petitioner/plaintiff has not disputed the fact that the mother of defendant No.2 and the petitioner/plaintiff namely Bhuneshwari was in exclusive ownership of the suit property, which was inherited through her late father, and during her life time, she had full right to dispose of the suit property and further considering that Bhuneshwari (mother) had executed a sale-deed in favour of her grandson (defendant No.1), who is the son of defendant No.2 and further, the said sale-deed had not been challenged during her lifetime and now, the petitioner/plaintiff is alleging that his mother has not been paid due consideration and the sale-deed was executed fraudulently, this Court is of the view that since the petitioner has stepped into the shoes of his late mother, he is deemed to be party to the impugned sale-deed and thereby, he is required to pay ad valorem court fees on the said sale-deed.

For the foregoing, I am of the opinion that the impugned order is just and proper, which does not call for any interference by this Court.

However, it is pertinent to mention here that in the impugned order, before conclusion of trial, the trial Court has significantly observed that the petitioner/plaintiff is not in possession of the suit property. Since the issue No.2 is required to be adjudicated, the trial Court is directed to decide the said issue , strictly in accordance with law, on its own merits, without being influenced by any of the observations made in this order.

With the aforesaid observations/directions, the petition is disposed of.