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RAVINDER KUMAR versus NARINDER KUMAR & ORS.

High Court of Punjab and Haryana, Chandigarh

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Ravinder Kumar v. Narinder Kumar & Ors. - CR-4801-2005 [2006] RD-P&H 11572 (30 November 2006)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

C.R.No. 4801 of 2005

Date of decision : 1.12.2006.

Ravinder Kumar

.........Petitioner.

Versus

Narinder Kumar & Ors.

...........Respondents.

CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr.Munish Jolly,Advocate and

Mr. R.K.Dhiman, Advocate

for the petitioner.

Mr. A.K. Khubbar, Advocate

for respondents No. 2 to 5.

****

VINOD K. SHARMA,J.( ORAL )

Present revision petition has been filed against the order dated 17.8.2005 passed by the learned Civil Judge (Jr.Divn.), Jagadhri allowing the application moved by the defendant-respondents under Order 7 Rule 11 C.P.C. directing the petitioner to affix advalorem Court fee on the plaint filed by the petitioner.

The petitioner herein has filed a suit for declaration to the effect that the plaintiff is owner in the properties to the extent given below :- "A. 1/15 share in the land measuring 93 Kanal 10 Marlas, comprising in Khewat No. 27, Khatauni No. 421 to 427, Khasra No. 42//23, 57//3/1, 8/1/1, 57//8/1/2, 29//1,2 Min, 12, 57//7/1, 29//2 Min, 42//24, 29//9, Khewat/Khatauni No. 229/429 to 433, Khasra No. 28//5/2, 6, 28//5/1, 15//25, 15//16, 14//20, 21.

B. 1/20 share in the land measuring 06 Kanal 01 Marlas, comprising in Khewat/Khatauni No. 230/434, Khasra No. 29//10/1, 10/1.

Both the lands are situated at Village Bhambholi, H. B.

No. 435, Tehsil Jagadhri, District Yamuna Nagar, as per Jamabandi for the year 2000-01, with all rights appurtenant thereto and therein with the corresponding rights in Shamlatdeh also and the mutation No. 809, dated 21.02.1991 of inheritance of Sh. Ranjit Singh attested in favour of defendant No.4 on the basis of alleged will dated 29.7.1990 is illegal, non-existence and not binding upon the rights of the plaintiff and the decree dated 22.01.1992, passed in civil suit No. 28 of 1992 titled as "Shanti Bala Vs. Shankutla Devi" passed by the Court of Sh. V.B. Khanduja the then Senior Sub Judge, Jagadhri, in respect of the part of the land and decree dated 03.02.1996, passed in civil suit No. 35, dated 06.01.1996 titled as " Shashi Bala Vs. Shankutla Devi" passed by the Court of Sh. M.C.Mehra, the then Senior Sub Judge, Jagadhri, in respect of the part of the land, in favour of defendant No.5, and the mutation No. 1006 and 1007, dated 21.8.1996 attested on the basis of above said decrees respectively and all other subsequent transfer if any are illegal, non-existence, and not binding upon the rights of the plaintiff,

C. 1/5 share in the house bearing Municipal Unit No. C- 7/1079, consisting of 3 rooms, 1 kitchen, bathroom, store, verandah and open Sehan, which is bounded as under :-

East : House of Joginder Singh,

West : Open plot of the parties

North : Gali

South: H. No. C-7/1080,

D. 1/5 share in the house bearing Municipal Unit No. C- 7/1080, consisting of 3 rooms, 1 kitchen, bathroom, store, verandah and open Sehan, which is bounded as under :

East : House of Joginder Singh

West : Open plot of the parties

North : H. No. C-7/1079,

South: Gali

E. 1/5 share in the open plot along with shed bounded as under :

East : House of 1079, 1080 of the parties, West : Property of others.

North : Gali

South: Gali

All the properties are situated at Dawarka Puri, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar." He also claimed a consequential relief of joint possession and permanent injunction restraining defendants No. 4 & 5 from alienating the suit land by sale, mortgage, lease or any other manner whatsoever and from creating any charge thereon.

The defendant-respondents filed an application under Order 7 Rule 11 C.P.C. on the plea that the petitioner in the suit had challenged the will dated 29.7.1990 and two decrees dated 22.1.1992 and and 3.2.1996 regarding the land measuring 32 Kanal-13 Marlas and two houses along with plots which were in the Municipal limit. It was claimed that the market value of the suit land was Rs. 50 lacs and the market value of both houses along with plot was not less than Rs. 30 lacs, thus, the total value of the property in question was Rs. 80 lacs, whereas the plaintiff had affixed a court fee on the value of Rs. 200/- whreas advalorem Court was required to be affixed.

The impugned order was contested by the petitioner primarily on the ground that the petitioner was not party to the impugned decrees and, therefore, was not bound to pay the Court fee on the market value of the suit land. It was claimed that if the relief of declaration of ownership was granted to the plaintiff the decrees would automatically stands set aside.

The learned trial Court came to the conclusion that in the suit framed the petitioner has primarily claimed the relief of cancellation of registered sale deeds in the suit for declaration and, therefore, the case was not covered under Section 7(iv)(b)(c) and, therefore, he was required to pay the Court fee on the sale consideration as well as on the will dated 29.7.1990 as per the prevalent rate of suit property. This finding of the learned Trial Court cannot be sustained. The Court fee has to be assessed keeping in view the suit as framed. The reading of the plaint and the relief claimed would show that the plaintiff-petitioner has filed a suit for declaration with a consequential relief of cancellation of decrees passed by the Court in which he is not a party. Once the petitioner plaintiff was not party to the sale deeds and was claiming ownership and consequential relief on the basis of declaration prayed for, therefore advoleram Court fee was not payable as he cannot be held to be bound by the act of third party. Thus, the impugned order cannot be sustained.

Accordingly, this revision petition is allowed, impugned order is set aside and it is held that the advalorem Court fee is not payable by the plaintiff on the suit as framed.

1.12.2006 ( VINOD K. SHARMA )

'sp' JUDGE


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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