JUDGMENT :

1. This civil revision petition is directed against the order dated 30.09.2021 passed by the learned Civil Judge, Dausa, District Dausa (Rajasthan) (for brevity, “the learned trial Court”) in Civil Suit No.10/2019 whereby, an application filed by the petitioner/defendant no.2 (for brevity, “the defendant no.2”) under Order 7 Rule 11 CPC has been dismissed.

2. The relevant facts in brief are that the respondent no.5/plaintiff (for brevity, “the plaintiff”) filed a suit for cancellation of two registered gift deeds dated 19.12.2018 and permanent injunction against the defendant no.2 and the respondents no.1 to 4 stating therein that the defendants no.1 to 3 fraudulently got executed the aforesaid gift deeds from him of the ancestral property. Therein, the defendant no.2 filed an application under Order 7 Rule 11 CPC raising objection as to under valuation of the suit and payment of deficit Court fee which has been dismissed by the learned trial Court vide order dated 30.09.2021, impugned herein.

3. Assailing the order impugned dated 30.09.2021, learned counsel for the defendant no.2 submits that since, the suit has been filed for cancellation of the registered gift deeds executed by the plaintiff himself, the Court fee would be payable as per Section 38 of the Rajasthan Court Fee and Suit Valuation Act, 1961 (for brevity, “the Act of 1961”) and not as per its Section 24. He submits that for payment of Court fee under Section 38, the plaintiff is required to assess the market value of the subject matter of the suit, i.e., the land and to pay the Court fee ad valorem. He, in support of his submissions, relies upon following judgements:

1) Makhan Lal Vs. Urban Improvement Trust, Jaipur City: S.B. Civil Revision Petition No.104/1977

2) Mohkam Chand Dasot & Anr. Vs. Addl. Distt. & Sessions Judge No.3, Jaipur City, Jaipur: (2006) 3 RLW 1858

4. Per contra, learned counsel for the plaintiff would submit that the assessment of market value of the land and payment of Court fee thereupon is a mixed question of law and fact which cannot be determined under Order 7 Rule 11 CPC. He submits that he has rightly valued the suit under Section 24 of the Act of 1961. He, therefore, prays for dismissal of the revision petition. Learned counsel, in support of his submissions, relies upon following judgement:-

1) Smt. Sunita Dhamani & Anr. Vs. Pushpa Goenka & Anr.: S.B. Civil Revision Petition No.104/2008

5. Heard. Considered.

6. A perusal of the plaint reveals that the plaintiff has sought cancellation of the two registered gift deeds dated 19.12.2018 executed by him. Although, the plaint is bereft of any averment under which provision of law, the suit has been valued; but, learned counsel for the plaintiff submits that it has been done so under Section 24 of the Act of 1961.

7. Section 24 of the Act of 1961 reads as under:-

“24. Suits for declaration.-In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under section 25-

(a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property, subject to a minimum fee of twenty rupees;

(b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market-value of the property, subject to a minimum fee of twenty rupees;

(c) where the prayer relates to the plaintiffs exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint subject to a minimum fee of forty rupees;

(d) where the prayer is for a declaration with reference to any property and no consequential relief is prayed for, fee shall be computed on the market -value of the property, subject to a m