JAGDISH SINGH Vs. MOHAN LAL

JUDGEMENT

(1.) JAGDISH Singh petitioner herein, has filed a suit for declaration that the sale -deed dated 19 -9 -1969 of ancestral land measuring 1 kanal 10 marlas comprised in Khasra No. 1937/min situate at Top Sherkhanian, tehsil Jammu, executed by Sagra Singh, respondent No. 2 in favour of Mohan Lal, respondent No. 1 was without legal necessity and as such be declared null and void and ineffective against his rights with consequential relief of possession of the land in question. Mohan Lal who was defendant in the case, raised a plea that the Court fees has not been fixed properly as the plaintiff had sought relief of possession of land and the court fees should have been fixed in accordance with the market rate of the land. The suit was pending in the court of Sub Registrar Munsiff, Jammu, who framed the following preliminary issue in the case: Whether the valuation for the purposes of Court fees has been fixed wrongly? If so, what should be the correct valuation of the suit? OPD The trial Court vide its order dated June 3, 1980 came to the conclusion that the plaintiff sought main relief of possession and as such he should fix the court fees in accordance with the valuation of the land mentioned in the sale -deed. Aggrieved by this order the plaintiff -petitioner has come up in revision before this Court. Respondent No. 1 did not choose to appear despite service and respondent No. 2 refused to accept service.

(2.) I have heard learned counsel appearing for the petitioner. The plaintiff in the case has alleged that Sagra Singh defendant being his father and Karta of the Joint Hindu Family has alienated the ancestral land by virtue of the sale -deed in favour of Mohan Lal, defendant without any legal necessity and as such the sale -deed is not binding on him. He has thus prayed for declaratory relief of delaring the said sale -deed as void and also consequential relief of possession of the said land. Learned counsel for the petitioner has argued that the plaintiff has prayed for declaratory decree in regard to the declaration of the sale -deed as void and the consequential relief which flows from it is the relief of possession and as such the suit is covered under Sec, 7 (iv) (c) of the Court Fees Act (hereinafter to be referred to as the ACT). In support of his contention he has referred to an authority of this Court reported as 1979 SLJ 177.

(3.) IN accordance with the provisions contained in Sec. 7 (iv) (c) of the Act, the amount of fees payable in suits to obtain a declaratory decree or orders where consequential relief is prayed, is according to the amount at which the relief sought is valued in the plaint. In a Division Bench authority of this Court -1983 SLJ 301 -the law on the point has been laid down in such a manner: "Even assuming that the respondents could have asked for such a declaration, the question still remains as to whether they could have brought their suit within the purview of Sec. 7 (iv) (c). Before CI. (c) may apply, it has to be shown that the substantive relief claimed in the suit is declaration and the consequential relief flows directly from it, which cannot be claimed independently of it. In other words, it must be shown that a suit for the relief claimed as consequential relief will not lie, unless the relief of declaration is also sought in it. Seeking a declaration of the right and not proof of it should be essential for bringing suit within the purview of Cl. (c). Where grant of the declaration is merely incidental to the grant of the consequential relief claimed in the suit, it will not fall under Cl. c). To illustrate it by giving examples, where the plaintiff claims recovery of possession of the suit property as its owner, it will not be necessary for him to seek a declaration that he is the owner of the property and to claim its possession only by way of a consequential relief. He can file a suit for possession simpliciter and may have to prove his ownership, if traversed by the defendant, to get a decree for possession. On the other hand, where a plaintiff seeks possession of the suit property, which the defendant has occupied on the basis of a sale deed executed by the person through whom the plaintiff alleges is vitiated by fraud or undue influence, he cannot bring a suit for possession simpliciter, and shall have to seek a declaration to the effect that the sale -deed is void on that account, claiming its possession by way of consequential relief only, for, so long as the sale deed stands in his way, he will not be entitled to possession of the suit property, and shall have to get rid of the sale -deed by a decree of the court. Further more, the fact whether the declaration of right is a substantive relief, must appear from the substance of the claim, and from the bald averments made in the plaint, which has been artistically drafted to evade payment of the requisite court -fee........." The expression "consequential relief" in section 7 (iv) (c) of the Act means some relief which would flow directly from the declaration given and cannot be claimed independently of the declaration a substantive relief. It is necessary that a relief to be a consequential relief that relief be not capable of being claimed, in the absence of a claim for declaration, as a substantive relief, that is to say, no suit for that relief can lie unless the suit also contemplates a declaratory relief. It is only in such suits that it can be said that the relief sought is so linked with the declaratory relief that it should be considered a relief consequential to the declaratory relief. This point was also considered by Honble Justice Dr. A. S. Anand (now Chief Justice) in case Krishan Singh and ors. Versus Cm Parkash -1979 SLJ 173 and observed as under: Coming now to the merits of the case. The short question which arises in the present case is whether the suit filed by the plaintiffs fall within the purview of S. 7 (iv) (c) of the Court Fees Act or whether it fall within S. 7 (v) of the Court Fee Act. With a view to determine whether a particular suit falls under section 7 (iv) (C) of the Court Fees Act the court has to look to the substance of the plaint and not to its mere form in order to determine whether the suit is really one for a declaration with consequential relief or is just a camouflage attempt in words to disguise the specific relief claimed in the garb of a suit for declaration coupled with consequential relief of possession. It is indeed open to the plaintiff to bring a suit for possession simplictor or to bring a suit for declaration with .consequential relief of possession. The court fee will be determined on the nature of the suit as framed at the choice of the plaintiff, provided it is legally open to him to frame the suit in that manner. A plaintiff may bring a suit for possession simplictor and in that case his suit would be covered under Section 7 (v) of the Court Fees Act. If the plaintiff, however, brings a suit for declaration and consequential relief of possession, the court shall have to determine as to which is the main relief which the plaintiff seeks and which is the relief which follows from it. If declaration is the main relief and the relief of possession is only consequential, the suit would fall under Section 7 (iv) (C) of the Court Fees Act but not otherwise."