DANISH Vs. SYED SHAHENSHAH HUSAIN ALIAS SYED SILAS

JUDGEMENT

(1.) Heard learned counsel for the petitioners and Sri S.P. Singh, learned counsel for respondent, who has appeared through caveat.

(2.) Respondent has instituted O.S. No.1276 of 2009, Syed Shahenshah Husain Vs. Danish and others. Relief claimed in the suit is for declaration to the effect that the will claimed to have been executed on 11.01.2008 by Syed Wasi Jafar in favour of defendant No.1 be declared null and void. Relief of permanent prohibitory injunction has also been sought. Relief of mandatory injunction was also sought for delivery of possession to the plaintiff in case it was found that defendants were in possession. Defendants filed written statement and raised pleas of under valuation of the suit and insufficiency of court fees paid on the plaint. In para-15 of the plaint, Relief-(A) for declaration was valued at Rs.2 lacs and relief-(B) was also valued at Rs.2 lacs, total Rs.4 lacs. Issues were framed. Issues No.3 & 4 related to valuation and court fees. Additional Civil Judge (S.D.), Court No.1, Bulandshahar decided the said issues in favour of the plaintiff on 07.08.2012. The defendants petitioners had contended that valuation of the suit for the purposes of jurisdiction and court fees must be on the basis of market value of the property regarding which Will was executed and ad voleram court fees should have been paid. The trial court placed reliance upon Surhid Singh Vs. Randhir Singh, 2010 AIR(SC) 2807 holding that if the relief is for declaration of a deed to be void of which plaintiff is not executant/ purported to be executant, then court fees is to be paid in accordance with Section 7(IV)(C) of Court Fees Act and not Section 7(IV)(A). The issues were decided in favour of the plaintiff. Against the said order, defendants petitioners filed Civil Revision No.82 of 2012, which was dismissed on 09.11.2012, hence this writ petition.

(3.) The revisional court agreed with the petitioners that Surhid Singh (2010) authority of the Supreme Court was not applicable in U.P.