By the Court.—Heard Sri R.C. Pal, learned counsel for the appellants.

2. The present appeal, filed under Section 6 A of the Court Fees Act, 1870, is directed against the judgment and order dated 24th February, 2015, passed by the Additional Civil Judge (Senior Division), Court No. 2, Aligarh in Original Suit No. 1775 of 2013 (Mehrab and another v. Hullan Khan and others), whereby the appellants/plaintiffs (hereinafter referred as the ‘appellants’), have been directed to pay ad-valorem Court fees.

3. On behalf of the appellants, validity of the impugned judgment and order have been challenged on the ground inter alia that the Court below has misread the plaint illegally and relied on the case law not applicable to the facts of the present case. The suit has been properly valued and Court fees have been paid accordingly. Thus, the impugned judgment and order are illegal and without jurisdiction.

4. The said original suit was filed by the appellants on the allegation that they were transferable bhumidhar, owner in possession of the property in dispute, details whereof have been given at the foot of the plaint and used by the appellants for the residential purposes. The appellants have inherited the property in suit from their younger brother Mahoob Ali, who died in the year 2001 issueless. The respondent Nos. 1 and 2 fraudulently and dishonestly got executed the sale-deed dated 27th September, 2013 by respondent No. 3. Now they want to grab the property in suit. Request has been made to declare the said sale-deed to be void and by way of prohibitory injunction, respondents be restrained from interfering with the peaceful possession, use and occupation of the property in dispute by the appellants.

5. The suit was contested and on the basis of the pleadings issues were framed and the following issue was decided as preliminary issue :

Preliminary Issue No. 5.—Whether suit is under valued and paid Court fees is inadequate ?

6. After hearing the parties, the Court below has observed that the present suit is for declaration and permanent injunction, suit has been valued on the basis of the value of the property in suit, as mentioned in the said sale-deed. The learned civil judge has held that suit has been correctly valued and in reference to the relief of prohibitory injunction, proper Court fees have been paid. However, in reference to first relief regarding cancellation of sale-deed, the appellants have to pay ad valorem Court fees thereafter the appellants have been directed to pay ad valorem Court fees.

7. Learned counsel for the appellants has argued that the appellants are owner in possession. The relief sought for regarding the said sale-deed to be null, is merely an incidental relief. The appellants are required to pay the Court fees according to the plaint averments.

8. Learned counsel for the appellants has taken us through the plaint to emphasis the fact that in khatauni they are entered as bhumidhar. According to plaint averments they are in possession and the said sale-deed is fictitious. On the basis of these averments, he submits that the trial Court has erred in applying provisions of Section 7 (iv-A) of the Court Fees Act, 1870, whereas the appellants are entitled to pay Court fees for declaration in accordance with Article 17 Schedule (ii) of the Court Fees Act, 1870.

9. In support of these arguments he has referred the following cases :

(1) Smt. Shefali Roy v. Hero Jaswant Dass, 1992 AWC 1000 (DB).

10. In this case, observations of this Court made in para Nos. 21 to 23 are relevant for the present purpose. They are quoted as under :

“21. No doubt the aforesaid provision is emphatic dealing with the point in issue. However, words used therein “other document securing money or other property having such value” require interpretation so as to find out pith and substance to this provision, that is what is the intention of legislature in putting the word “securing”. This word “securing” is not only related to the