RAKESH KUMAR JAIN, J.

1. This petition is filed against the order dated 30.03.2013, dismissing the application filed by the defendants under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (here-in-after referred to as the CPC) for rejection of the plaint.

2. In brief, the plaintiffs filed a suit for declaration that they are owners of land measuring 27 kanal 18 marlas, situated within the revenue estate of village Har Rai Pur, Tehsil and District Bathinda, the General Power of Attorney No. 100 dated 04.05.2011, alleged to have been executed by the plaintiffs in favour of defendant No. 2 is illegal, null and void, obtained by defendant no. 2 by misrepresentation of facts and further the sale deed No. 4203 dated 08.07.2011 got executed and registered by defendant no. 2 representing himself as General Power of Attorney of plaintiff no. 2 on the basis of the GPA dated 04.05.2011 in respect of the land measuring 16 Kanal 14-1/5 marlas, i.e. 3/5th share out of the land measuring 27 kanal 18 marlas, in favour of defendant no. 1 for an alleged consideration of Rs. 13,20,000/- sale deed No. 4204 dated 08.07.2011, executed by defendant no. 2 representing himself as GPA of plaintiff no. 1 on the basis of GPA dated 04.05.2011 in respect of land measuring 11 Kanal 3-1/5 marlas, i.e. 2/5th share out of land measuring 27 Kanal 18 Marlas in favour of defendant no. 1 for Rs. 8,82,500/- the mutation No. 7630 sanctioned on the basis of the sale deed No. 4203 dated 08.07.2011 and mutation No. 7631 sanctioned on the basis of alleged sale deed No. 4204 are illegal, null and void and prayed for possession of the above said land as a consequential relief and also for permanent injunction to restrain defendant no.1 from alienating the suit land or any part thereof to any other person by way of mortgage, gift or exchange etc.

3. The defendants filed an application under Order 7 Rule 11 of the CPC for rejection of the plaint for want of proper Court fee. The said application has been dismissed by the learned trial Court observing that where the plaintiffs are the parties to the sale deed and challenged the same along with possession, then ad valorem court fee is required to be paid, whereas in the present case, the sale deeds have been executed by General Power of Attorney of the plaintiffs who was having possession of the suit property under lease. It is also observed that the age and illiteracy of the plaintiffs cannot be ignored and they cannot be burdened with heavy court fee before adjudicating the allegations levelled by them and in case of prima facie allegation of fraud is made where the sale deeds are stated to be void abinitio, there is no need to pay the ad valorem court fee.

4. Learned counsel for the petitioner has submitted that admittedly, the plaintiffs, who are the non-executant of the sale deed and are not in possession of the suit land, are not only seeking declaration that the sale deeds are invalid but also praying for possession, are required to pay the ad valorem Court fee as per Section 7(iv)(c) of the Court Fees Act, 1870 (here-in-after referred to as the Act) and in this regard, relied upon a decision of the Supreme Court in the case of Suhrid Singh @ Sardool Singh vs. Randhir Singh and Others, AIR 2010 SC 2807.

5. On the other hand, learned counsel for the respondents has relied upon a judgment of this Court in the case of Kulwinder Kaur and Others vs. Sukhwant Singh and Others, 2010 (3) PLR 182 to contend that if a person is not a party to the sale deed, he is not required to affix the ad valorem Court fee for the purpose of challenging the sale deed.

6. I have heard learned counsel for the parties and examined the record with their able assistance.

7. Admittedly, the case of the plaintiffs is that they are non-executant of the sale deed and are not in possession. They have filed the suit for declaration not only to set aside the sale deeds executed on their behalf by defendant no. 2 acting as their General Power of At