Non-executants in a suit challenging sale deeds based on allegations of fraud are not required to pay ad-valorem court fees, establishing a distinction from executants.

ORDER :

ANAND PATHAK, J.

With consent heard finally.

1. The present petition under Article 227 of the Constitution has been preferred by the petitioner taking exception to the order dated 28.10.2021 (Annexure P/1) passed by Trial Court (4^th Civil Judge Junior Division, Shivpuri), whereby application preferred by the petitioner as defendant under Order VII Rule 11 of the CPC read with Section 151 of the CPC has been rejected.

2. Precisely stated facts of the case are that Late Shrilal was father of the respondents No.1 to 6 and husband of respondent No.7 and was the Bhumiswami of the suit land bearing Survey No.319 ad-measuring 0.209 hectare, Survey No.355 ad-measuring 0.31 hectare, Survey No.359 ad- measuring 0.167 hectare and Survey No.356 ad-measuring 1.098 hectare situate at Maniyar, Tahsil and District Shivpuri. Late Shrilal sold this land to the present petitioner Vijay Jatav (who is defendant in civil suit) vide two registered sale deeds, one sale deed dated 12.11.2018 for consideration of Rs.34,25,000/- and another to the respondent No.8 Radheshyam Ojha for consideration of Rs.30,000/-

3. After death of Late Shrilal , plaintiffs (who are respondents No.1 to 7 herein), filed a civil suit for declaration and injunction against the petitioner as well as respondent No.8 and sought declaration that the sale deeds be declared null and void on the ground that same were executed by playing fraud with Late Shrilal. As alleged, after getting sale deeds executed, they mischievously murdered Shrilal because thereafter whereabouts of Late Shrilal were never found and therefore, criminal case was registered against the petitioner.

4. Plaintiffs valued the suit Rs.1000/- and paid the court fee Rs.620/-, therefore, petitioner filed an application under Order VII Rule 11 of the CPC with the allegation that valuations to the sale deeds challenged in the suit are of Rs.64,25,000/-, therefore, suit is to be valued accordingly and ad-valorem court fee is to be paid. Petitioner also raised the point regarding pecuniary jurisdiction of the Court to try the suit.

5. Respondents opposed the prayer and submitted that they were not the party to the sale deeds and they never executed the same, therefore, fix court fee is required to be paid rather than ad-valorem court fee.

6. After hearing the rival submissions, Trial Court rejected the application preferred by the petitioner/defendants. Therefore, defendant has preferred this petition under Article 227 of the Constitution challenging the said order.

7. It is the submission of learned counsel for the petitioner that since plaintiffs are sons of Late Shrilal and after his death, they stepped into the shoes of Late Shrilal, therefore, they have to pay ad-valorem court fee. Plaintiffs have not claimed in the plaint that suit property in question is the coparcenary property, therefore, they are required to pay ad-valorem court fee. Plaintiffs are bound by the acts of their father, therefore, even if the plaintiffs are not signatory over the sale deeds, even then also, plaintiffs are required to pay ad-valorem court fee.

8. It is further submitted that since the plaintiffs have birth right in the property and they are claiming their shares in the property by way of challenging the sale deeds executed by their father, therefore, plaintiffs are required to pay ad-valorem court fee.

9. Learned counsel for the petitioner relied upon the judgments in the cases of Israt Jahan Vs. Rajia Begum and others reported in 2010 (1) M.P.L.J. 50, Ram Niwas and others Vs. Somraj and others reported in 2019 (2) MPRN 100 in support of h