1. - Heard on applications, whereby the respondents have raised an objection that the appellants-plaintiffs have not deposited adequate Court fee on the basis of market value of the suit property which according to the respondents in one suit on the stated market value of Rs. 5,00,000/- would come to Rs. 25065/-, whereas the plaintiffs-appellants have paid the Court fee only at of the said amount i.e. Rs. 12565/- The respondents have, therefore, prayed that the appeal is not maintainable and the same deserves to be dismissed.

2. The learned counsel for the respondents Mr. S.L. Jain drawing attention of the Court towards Section 38 of the Rajasthan Court fee and Suit Valuation Act, 1961 has submitted that in a suit for cancellation of decree for money or other property having a money value or other document relating to right, title or interest in the immovable property, the Court fee has to be paid on the market value of the suit property in question. He submitted that since the plaintiffs-appellants have prayed for cancellation of sale-deed, executed in favour of the defendant No. 3. The aforesaid Court fee of Rs. 25,065/- was required to be paid by the plaintiff-appellants. He submits that Section 24 of the said Act is not applicable in the present case as contended by the appellants because the suit even though described to be a suit for declaration and injunction, is in effect a suit for cancellation of the sale-deed. In the alternative, Mr. Jain submitted that even if Section 24 is held applicable, since the plaintiff- appellants were admittedly not in possession of the agricultural land in question as per Clause (a) of Section 24, the Court fee computed on the full market value of the property shall be payable. He relied upon the judgment of this Court in the case of Smt. Narbada v. Smt. Aashi, reported in AIR 1987 (Raj.) 162 and Lal Singh & Ors. v. Tej Singh & Anr., reported in 1972 AIR (Raj) 137 . In the case of Lal Singh v. Tej Singh , the learned Single Judge of this Court held as under :

"In a suit by sons to get a declaration of their title to the property and avoid its sale by their father during their minority in contravention of sub-section (2) of the Hindu Minority and Guardianship Act (1956) and voidable under sub-section (3) at their instance, they must get the sale deed cancelled. Such a suit though for declaration is in substance a suit for cancellation of sale deed and falls under this section and not under Section 7(2) (a) of the Act and where the value of the property sold is Rs. 24,000/- it falls beyond the pecuniary jurisdiction of Civil Judge and has to be filed in the Court of District Judge.

3. On the side opposite, Mr. G.R. Punia. learned counsel appearing for the appellants urged that since the plaintiffs had filed suit for declaration and declaring the sale-deed, as void and not precisely for cancellation of said sale-deed as per Section 24(b) of the Act, only of the market value of the suit property, the Court fee would payable and therefore, he contended that the Court fee of Rs. 12,565/- paid was appropriate Court fee. He further submitted that it was not for the defendants, but only for the State to raise the objection of the deficit Court fee if any and it was not open to the respondents-defendants to raise such objection. For this proposition, he relied upon the decision of this Court in the case of Khema & Ors. v. Shri Bhagwan & Ors. reported in AIR 1995 (Raj.) 94 . He further relied upon the decision of Madras High Court in the case of Thirupathiammal, reported in AIR 1956 Madras 179 and in the case of Laxmanrao v. Dagubai & Anr., reported in AIR 1952 Madhya Bharat 147 for the proposition that where the plaintiff was not a party to the sale-deed and plaint allegation being to the effect that the said sale-deed is a sham transaction, the plaintiff need not pray for cancellation of the document and therefore, the Court fee cannot go beyond the plaint allegation and thus, the C