In a suit for possession of land after cancellation of a gift-deed, the court-fee payable is ad valorem on the value of the land under Article I, Schedule I of the Court Fees Act.

Prem Chand Pandit, J.

1. Jatat Singh brought a suit for possession of agricultural land measuring 35 kanals 2 marlas situate in village Kathanjan, District Amritsar, after cancelling the gift-deed dated 30th March, 1965, alleged to have executed by him in favour of his nephews Avtar Singh and his brothers Jaspal Singh and Kuldip Singh sons of hazara Singh, defendants in the said suit. His allegations were that he was the owner of the land in dispute and his nephews used to cultivate the same. Since they were not giving him adequate produce of the land he asked them to give up possession of the said land. At this, they desired to have the land on lease and promised to pay half of the produce to him. Thereupon, they persuaded the plaintiff to execute a lease-deed in their favour. For that purpose, the requisite stamp paper was purchased and a document was got written from a petition-writer. The plaintiff was under the impression that a lease-deed for 10 years was being prepared. The defendants, however, fraudulently got a gift-deed executed by the plaintiff. Later on, when he came to know about this fraud having been played on him, he filed the present suit.

2. The suit was resisted by the defendants on a number of pleas. A preliminary objection was, also taken by them that the suit was not properly valued for the purposes of court-fee and jurisdiction. According to them, the plaintiff was liable to pay ad valorem court-fee on Rs. 6,500/- which was the value of the property alleged to have been gifted by him in favour of the defendants.

3. A preliminary issue was framed in the case to the effect whether the suit was properly valued for the purpose of court-fee and jurisdiction.

4. The case of the plaintiff was that as the suit was for possession of the land, therefore the court-fee had been correctly paid under Section 7(v) of the Court Fees Act, that is, ten times and the land revenue payable on the land. On the other hand, the position taken by the defendants was that the plaintiff was bound to get the gift-deed executed by him cancelled, before he could seek possession of the land and, therefore, the case was governed by Article I, Schedule I of the Court Fees Act and he had to pay court-fee ad valorem, on the value of the property, which was Rs. 6,500/- in the instant case.

5. The trial Judge after hearing both the parties, passed the following order on 26 August, 1969 :-

"Apparently the suit of the plaintiff is for possession after getting the gift deed dated 30th march, 1965 cancelled which is alleged to have been brought by fraud. The contention of the learned counsel for the plaintiff would have some ground if this suit had been for a declaration with consequential relief of possession. But it is a suit for possession after getting the gift-deed cancelled and in my opinion the Court Fee should have been affixed on the value of the land as mentioned in the gift-deed."

Against this order, the present revision petition has been filed by the plaintiff.

6 A preliminary objection was raised by the learned counsel for the defendants that such an order was not revisable by this Court.

7. This objection is without any substance. It has been held by a Bench decision of this Court in Sheel Kumar v. Aditya Narain and another, 1964, PLR 916 that an order accepting objection as to court-fee and valuation raised by the defendant, if erroneous, cold be corrected in revision.

8. Coming to the merits of the case, it would be seen that the plaintiff could not get possession of the land from the defendants unless the gift-deed, alleged to have been executed by him in their favour, was first got cancelled under Section 31 of the Specific Relief Act, 1963. Counsel for the plaintiff submitted that he could seek a declaration that the said gift-deed was not valid because it had been got executed under undue influence, and as a consequential relief, he could pray for possession of the land. In such a contingency, according to him, the ca