Prakash Shrivastava, J.—This writ petition under Article 227 of the Constitution of India is at the instance of plaintiff in the suit challenging the order of trial court dated 13/2/2013 requiring the petitioner to pay the advalorem court fee on the value of the suit property disclosed in the sale deed.

2. In brief, the petitioner has filed the suit for declaration and injunction in which the respondent had filed an application under Order 7, Rule 11 CPC and trial court while deciding the said application has directed the petitioner to pay the advalorem court fee.

3. Learned counsel for petitioner submits that the trial court has committed an error in directing the petitioner to pay the advalorem court fee ignoring that petitioner is not a party to the sale deed.

4. As against this learned counsel for respondent has supported the impugned order.

Having heard the learned counsel for parties and on perusal of the record, it is noted that petitioner has pleaded in the plaint that suit property being house No. 53 situated at Shastri Marg Sailana District Ratlam is ancestral property and that it was received by petitioner in partition and he is in possession of the same and is residing therein. It is further pleaded that respondent No. 1(brother of petitioner) had got the sale deed dated 8/5/12 executed from Satyanarayan (father of petitioner) in his favour without payment of consideration amount and by committing fraud. In the suit a prayer has been made to declare the suit property as ancestral property and also declaring the petitioner as owner on the basis of partition and declaring sale deed dated 8/5/12 as void and restraining respondent by way of injunction from dispossessing the petitioner from the suit property.

5. The impugned order of the trial court reveals that trial court has directed the petitioner to pay advalorem court fee on the ground that main relief in the plaint is not for declaring the sale deed as void but it is the consequential relief, therefore, the petitioner is liable to pay the advalorem court fee but while holding so, the trial court has failed to consider the correct position in law in this regard.

6. The Supreme court in the matter of Suhrdi Singh @ Sardool Singh v. Randhir Singh & others reported in AIR 2010 SC 2807 in similar circumstances has held as under:

"6. Where the executant of a deed wants to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or nonest, or illegal or that it is not biding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to ‘A’ and ‘B’ - two brothers. ‘A’ executes a sale deed in favour of ‘C’. Subsequently ‘A’ wants to avoid the sale. ‘A’ has to sue for cancellation of the deed. On the other hand, if ‘B’, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by ‘A’ is invalid/void and nonest/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court-fee is also different. If ‘A’, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court-fee on the consideration stated in the sale deed. If ‘B’, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court-fee of Rs.19.50 under Article 17(iii) of Second Schedule of the Act. But if ‘B’, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court-fee as provided under Section 7(iv) (c) of the Act. Section 7 (iv) (c) provides that in suits for a declaratory decree with consequential re