The main legal point established in the judgment is that a non-executant seeking consequential relief and cancellation of a deed, while being out of possession, is required to pay ad valorem court fee on the amount stated in the deed.

JUDGMENT

Tarlok Singh Chauhan, J. - The moot question in this petition is as to what would be the court fee payable on an instrument to which the plaintiff/petitioner is not a party, but at the same time, he is also not in possession of the suit property.

2. According to the learned trial court, the case of the plaintiff was governed by the provisions of Section 7(iv)(c) of the H.P. Court Fee Act, which required the plaintiff to pay ad valorem court fee on the settlement deed, wherein the value of the property in question was mentioned as Rs. 67,97,120/- and accordingly, the suit of the plaintiff was dismissed by the learned trial court vide order dated 22.12.2015 and the plaint was ordered to be returned to the plaintiff for filing the same before proper court after affixing proper court fee. However, on an appeal, the learned first appellate court vide order dated 28.3.2017, even though affirmed the findings of the learned trial court qua return of the plaint to the plaintiff, but at the same time, modified the order passed as regards dismissal of the suit as well as preparation of the decree-sheet. It is against these orders, the plaintiff has filed the instant petition under Article 227 of the Constitution of India on the ground that the impugned orders passed by both the learned courts below are contrary to the provisions of the H.P. Court Fee Act and, therefore, deserve to be set aside.

3. It is vehemently argued by learned counsel for the plaintiff that both the learned courts below have failed to draw a distinction between a executant of a deed and non-executant of a deed. He would further argue that it is more than settled 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 or that it is not binding on him. In order to buttress his submission, reliance is placed upon the judgment of the Hon''ble Supreme Court in Suhrid Singh alias Sardool Singh vs. Randhir Singh and ors. , (2010) 12 SCC 112, more particularly para 7 thereof. He would further argue that the similar reiteration of law can be found in the judgments of the Hon''ble Supreme Court in Satheedevi vs. Prasnna and anr. , (2010) 5 SCC 622 and Polamrasetti Manikyam and anr. vs. Teegala Venkata Ramayya and anr. , (2014) 5 SCC 603.

4. On the other hand, learned counsel for defendants/respondents No. 1 to 3 after relying upon Section 7(iv)(c) of the H.P. Court Fee Act, would argue that the valuation in the case was required to be determined on the basis of the plaintiff''s pleadings and more especially with the reference to the relief claimed in the suit and if the substantive relief is for the cancellation of the document, then mere clever drafting of the plaint cannot stand in the way of the Court looking into the substantive relief asked for. They would further argue that the plaintiff is not required to pay ad valorem court fee on the value of the property only in cases where

i. he is found to be in possession of the suit property;

ii. he has not claimed consequential relief;

iii. he is not the executant of the document; and

iv. he has prayed for declaration and not cancellation.

They would further submit that the Court is required to see as to whether the relief claimed in the suit is in fact for cancellation of settlement deed. They have also placed reliance upon Suhrid Singh''s case .

5. I have heard the learned counsel for the parties and have also gone through the material placed on record carefully.

6. At the outset, it would be noticed that the suit filed by the plaintiff is one for declaration with consequential relief of injunction, wherein he has claimed the following reliefs:

a) That the alleged family settlement deed No. 37, dated 7.8.2008 is wrong, illegal, null and void and has no binding effect upon the right of the plaintiff.

b) That mutation No. 1240 dated 26.8.2008 attest