BHAG SINGH Vs. JARNAIL SINGH

JUDGEMENT

(1.) THIS revision has been filed by Bhag Singh plaintiff against order of Sub fudge, Jagraon, dated November 19, 1987, directing him to make good deficiency of court-fee on the plaint. The plaintiff was asked to pay advalorem court-fee under Article I Schedule I of the Court fees Act.

(2.) THE suit was filed by Bhag Singh for declaration that he was owner in possession of the land treasuring 24 Kanals situated in village Galib Kalan, Tehsil Jagraon, Distt Ludhiana, after setting aside the sale deed dated June 23, 1986, executed by Jarnail Singh-defendant as attorney of the plaintiff in favour of Gurmit Kaur-defendant No. 2, for Rs. 45,000/- which was illegal, void and ineffective qua the pain-tiff's rights. Mutation sanctioned on the basis of the said sale deed was also challenged. He also wanted to avoid mortgage of 8 Kanals of land executed by defendant No. 2 in favour of defendant No. 3. According to the plaintiff he did not execute any power of attorney in favour of defendant No. 1 who is alleged to have mortgaged or sold the land On the plaint court-fee of Rs. 19. 50 was paid. After objection being raised, the trial Court vide the impguned order held that the advalorem court fee on the market value of the land was payable as the sale was being challenged.

(3.) LEARNED counsel for the petitioner has argued that court-fee paid on the plaint was in order, in the alternative it has been argued that the land in dispute being assessed to lard revenue, and the court fee was pavable at the most ten times of the land revenue assessed. In both the canditions there is merit. A perusal of the plaint clearly shows that the plaintiff intended to avoid the sale and the mortgage executed by has alleged attorney and thus he has to pay advalorem court-fee. On the plaint only Rs. 19. 50 court-fee was paid. The value of the suit for purposes of court-fee for declaration was fixed at Rs. 195/- It was farther stated that 10 times of the land revenue amounted to Rs 150/ -. However, court fee on the bigger relief was paid i. e. Rs. 19. 50 as argued. The question of payment of court fee depends upon the averments made in the plaint. If the substantive relief is declaration of title only and consequential relief is of setting aside sale being void, the case would be covered by Section 7 (iv) (c) of She Court Fees Act, In such a ease if possession is already with the plaintiff, and no relief of possession is asked for. Article 1 of Schedule I will not apply. In case substantive relief is for possession after setting aside sale to which plaintiff is a party Court fee payable would be under Article I Schedule I of the Court fees Act. Full Bench case in Niranjan Kaur v. Nirbigan kaur, (1982) 84 P. L. R. 127, is clear on this subject. In the present case the plaintiff claims to be in possession of the land in dispute and seeks declaration of ownership by avoiding sale deed and mortgage deed alleged to have been executed by his attorney. To such a suit Section 7 (iv) (c) of the Court Fees Act would be applicable i. e. Court fee payable would be on 10 times of the land revenue assessed as provided under Section 7 (v) of the Court Fees Act. It was so held in Joginder Singh and Ors. v. Major Singh, (1983) 85 P. L. R. 225, decided by G. C. Mital, J. Since valuation for the pusposes of court fee at 10 times the land revenue is stated to be Rs. 150/- court fee of Rs. 19. 50 paid would be in order.