Court Fee--Ad Valorem--Fixation of--Where plaintiff is seeking a declaration that the sale deed is null and void being not required to sale deed and is also not seeking possession, the plaintiff is not required to pay ad-valorem court fee

Ram Chand Gupta, J.

1. The present revision petition has been filed under Article 227 of the Constitution of India for quashing of the impugned order dated 23.9.2008, Annexure P1, passed by learned Additional Civil Judge, Senior Division, Rewari, vide which application under Order VII Rule 11 of the Code of Civil Procedure (hereinafter to be referred as the Code) has been allowed directing the petitioner to affix ad valorem Court fee.

2. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.

3. Facts relevant for the decision 6f present revision petition are that petitioner-plaintiff has filed a suit for decree of declaration declaring him as owner in respect of land measuring 52/15 marlas being 885/1140 share of 57 kanal, as mentioned in para No.1 of the plaint and pattedar of the entire 57 kanal and that the plaintiff is in possession of the disputed land except Killa No.l8/2, 23/2, and that sale deed document no.211, dated 28.5.2004 and Tarak Patta document No.212 dated 23.82004 and pattanama document No.791 dated 5.9.2005 and the mutations on that basis in favour of the defendants are null and void, illegal and without any jurisdiction and that plaintiff is not bound by the same and matron that basis the defendants have got no right, title or interest regarding the disputed land and that these sale deeds and tarak patta namas are result of fraud and misrepresentation alongwith consequential relief of permanent injunction restraining the defendants from interfering into the peaceful possession of the disputed land except killa Nos.18/2 and 23/2 with further relief of possession of Killa Nos.18/2 and 23/2 by removing construction in favour of the plaintiff against the defendants. Further relief of possession on the entire land is sought on the plea that if his possession is not proved over the remaining disputed land or the defendants succeed in dispossessing the plaintiff from the suit land forcibly, the decree for possession in favour of plaintiff and against the defendants regarding the entire land be passed.

4. An application was filed by respondent-defendants under Order VII Rule 11 of the Code by taking the plea that plaintiff had challenged the registered sale-deed on the basis of fraud and that the main relief of plaintiff is for declaration for getting the saledeed as invalid. The consideration of sale-deed is Rs.6,90,000/-. Hence, plaintiff should have affixed Court fee as per market value of the land in question, i.e., as per consideration of the sale-deed and however, plaintiff has affixed the Court fee of Rs.50/- only. Hence, it is prayed that plaintiff is required to pay ad valorem Court fee on the entire consideration of sale-deed, i.e., Rs.6,90,000/-, failing which plaint be rejected.

5. In reply to the application, it has been stated by petitioner-plaintiff that the present suit has been filed on the basis of title and the main relief of plaintiff is for declaration that he is owner and pattedar of the land in question and remaining relief of cancellation of document is ancillary relief and hence, proper court fee has been affixed as per law and ad valorem court fee is not required to be paid.

6. Learned trial Court decided the application filed by respondent-defendants in their favour and present petitioner-plaintiff was directed to affix ad valorem court fee within one month from the date of passing of the order by observing as under:-

"Keeping in view the arguments addressed by learned counsel for the parties and going through record available on the file this court is of the view that plaintiff himself has challenged the sale deed executed by him on the basis of fraud and for that purposes applicant has rightly placed his reliance Anil Rishi v. Gabakash Singh, 1998(3) C.C.C. page 78 and Ajmer Singh v, Punjab Singh (minor) and another, 2007(1) R.C.R. (Civil) page 336. On the other hand respondent