Shamina Bano And Another vs Mohammed Shakri And Others

The petitioner has filed the present petition being aggrieved by the order dated 31.01.2018 whereby the trial Court has directed the plaintiff to pay the ad-valorem court fees within seven days before registration of suit.

In compliance of the aforesaid order, the plaintiffs have paid the court fees but now challenging the validity of the order dated 31.01.2018 on the ground that they are not liable to pay the ad-valorem court fees because they are not the executent of the sale deed and they are in possession of the property.

According to the plaintiff the defendant No.1 is the husband of plaintiff No.1 and father of plaintiff No.2. The defendant No.1 was in jail in connection with the offence committed under the NDPS Act. He executed a power of attorney in favour of the defendant No.2 who sold the suit property to the other defendants. According to the plaintiffs, defendant No.1 No.1 had already executed a Hibanama in their favour hence, he has no right to execute the power of attorney as well as sale deeds in favour of the other defendants. Hence, they are not liable to pay the ad-valorem court fees in the civil suit challenging those sale deeds.

In support of his contention, Shri S.C. Agrawal, learned counsel for the petitioner has placed reliance over the judgment passed by the apex Court in the case of Suhrid Singh @ Sardool Singh @ Sardool, reported in (2010) 12 SCC 112) and the judgement passed by the Single Judge of this High Court in case of Baijnath Singh and Another Vs. Jagdish & Others, reported in 2014 (II) MPWN 98.

The plaintiff No.1 is wife and plaintiff No.2 is the son of defendant No.1 (Mohammed Shakir) who executed the power of attorney in favour of defendant No.2. On the basis of said power of attorney, the defendant No.1 has sold the suit property. The plaintiffs are claiming title over the suit property by way of Hibanama. The plaintiffs are claiming title over the property through defendant No.1 who was registered owner of the property. All these questions are disputed questions of facts which are required to be decided by the trial Court. In compliance of the impugned order, the plaintiffs have already paid the ad-valorem court fees. The issue of Court fees is also disputed question of fact which is liable to be decided by the trial Court on the basis of evidence, therefore, I direct the trial Court to frame the issue on this point also. If the issue is answered in favour of the plaintiffs, then certain they are entitled for the refund of excess amount of cour fee.

That defendant No.1 is not challenging the sale deeds and power of attorney. There is a possibility of collusion between plaintiffs and defendant No.1.

In view of the above, petition is disposed of.