Singhbhum East v. Smt. Sulekha Paul and Others
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C). no. 1644 of 2013 Ashim Kumar Paul, son of late Lalit Mohan Paul, resident of Holding no.399, Sonari West, New Layout Area, Road no.8, PO and PS Sonari, Town Jamshedpur, District- Singhbhum East ..... Petitioner Versus
Legal Reasoning
Smt. Sulekha Paul and Others ...... Respondents --------- CORAM: HON’BLE MR. JUSTICE AMITAV K. GUPTA For the Petitioner For the Respondent-State 08/Dated:17.08.2017 ---------- : Mrs. A.R. Choudhary, Advocate : JC to AAG ----------- 1. The petitioner prays for issuance of an order for setting aside the order dated 22.02.2013, passed by learned Civil Judge Senior Division-I, Jamshedpur, in Title Partition Suit no.68 of 2012 (Annexure-1) directing the petitioner to deposit ad- valorem court fee. 2. Learned counsel for the petitioner has submitted that the court below has failed to appreciate the fact that the Title Suit was instituted by the petitioner for partition of the property and for declaration of registered sale deed no.2574 of 2011 dated 30.03.2011 as null and void ab-initio and not binding on the plaintiff. That the Serestadar submitted the report for depositing ad-valorem court fee of Rs.50,000/- for the consequential relief sought for in the said suit. That the petitioner filed the petition dated 21.12.2012 stating that relief was declaratory in nature and covered under Section 31 of the Specific Relief Act as well as under Article 13(iii), Schedule-II of the Court Fees Act, 1870. That Section 31 of the Specific Relief Act provides that a person can seek for declaration of sale deed as null and void who has reasonable apprehension that if such instrument is left outstanding it may cause him serious injury. That the petitioner is not an executant to the sale deed and he has sought a declaration that the sale deed be declared null and void and not binding upon him. It is argued that the trial court has erred in law by directing the petitioner to deposit ad-valorem court fee by making reference to the provisions of Section 31 of the Specific Relief Act. Learned counsel has placed reliance on the decision of the Apex Court in the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Others, 2010, 12, SCC 112 and submitted that it has been held that „Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non- executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal that it is not binding on him. It is submitted that the case of the petitioner is squarely covered by the aforesaid decision, hence, the impugned order is fit to be set aside. 3. Learned counsel for the respondent-State is in attendance. 4. Heard. On perusal of the judgment rendered by the Apex Court in the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Others (Supra) the legal position on this aspect is made clear in para-7 of the judgment which reads as under: -2- “7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non- executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance can be brought out by the following illustration relating to A and B, two brothers. A executes a Sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs.19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv) (c) of the Act.” In view of the observation of the Apex Court and considering the fact that the petitioner has not prayed for cancellation of the sale deed rather for declaring that the sale deed was not binding on the petitioner as she was not a party to the sale deed, therefore, only fixed court fee is required to be paid and not ad valorem fee, hence the order dated 22.02.2013 passed in Partition Suit no.68 of 2012 (Annexure- 1), by Civil Judge Senior Division I Jamshedpur, is hereby, set aside. If the court below finds from the material on record that the petitioner is not in possession of the suit premises and is seeking consequential relief of possession, the trial court is at liberty to direct the petitioner to pay the requisite court fee in view of the observation of the Apex Court in the aforementioned case. It is evident that the suit was instituted in the year 2012 and due to pendency of this writ, the further progress in the suit has been stalled, therefore, the trial court shall expedite the trial of the case and dispose off the case preferably within two years from the date of receipt/production of this order. Both the parties shall co-operate in expeditious disposal of the suit. 5. Accordingly, with the aforesaid observation and direction, the writ application is, hereby, allowed. Tarun/- (Amitav K. Gupta, J.)