IMPORTANT POINT
Non-executants of sale deed have to pay ad-valorem court fees according to amount at which relief sought is valued in plaint.

Dr. A.K. Rath, J.—Plaintiffs are the appellants against a confirming judgment in a suit for declaration of title and permanent injunction.

2. The case of the plaintiffs was that plaintiff no.1, defendant nos.1, 3 and Dinabandhu Sahu, the adoptive father of plaintiff no.2, are brothers. There was partition of the properties by metes and bounds except the suit land. The suit land was in their possession. On 4.6.79, the defendant no.1 and his minor sons without the consent of the plaintiffs and defendant no.3 sold the entire suit land with tank to the defendant no.2 by means of a registered sale deed. After purchase, the defendant no.2 tried to remove the bunds of the tank. The sale is illegal. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.

3. The defendant nos.1 and 2 entered contest and filed a joint written statement. The case of the defendant nos.1 and 2 was that there was partition of the entire joint family properties amongst the brothers of plaintiff no.1, defendant nos.1, 3 and Dinabandhu Sahu. The suit land with tank fell to the share of defendant no.1. The defendant no.1 was in possession of the same. The defendant no.1 sold the same to the defendant no.2. After purchase, the defendant no.2 dug the tank. Defendant no.2 mutated the land in his name in Mutation Case No.6728 of 1980. The suit was bad for non-joinder of necessary parties and under valuation.

4. Stemming on the pleadings of the parties, learned trial court struck eight issues. Parties led evidence, oral and documentary to substantiate their case. Learned trial court came to hold that plaintiff no.2 is the adoptive son of Dinabandhu Sahu. The suit land is the joint properties of the plaintiffs, defendant nos.1 and 3. Both the plaintiffs have half share on the suit land. The sale deed dated 4.6.79 executed by defendant no.1 in favour of defendant no.2 vide Ext.4 is void. Plaintiffs are not in possession of the suit property. The suit property was sold for Rs.2000/-. Necessarily the suit land should have been valued at Rs.2000/-. The suit property was valued at Rs.200/- and as such the suit is undervalued. Held so, it dismissed the suit. The unsuccessful plaintiffs filed T.A. No.13 of 1986 before the learned Subordinate Judge, Chatrapur, which was eventually dismissed.

5. The second appeal was admitted on the substantial questions of law enumerated in ground nos.2, 3, 4 and 5 of the appeal memo. The same are:

“(2) For that the learned courts below grossly erred in law in dismissing the suit as being bad for non-joinder of necessary parties as the minor sons of defendant No.1 were not impleaded in the suit. It is submitted that the said two minor sons are not necessary parties to the suit as the suit is one for declaration of title and possession and especially in view of the settlement of land under Ext.3.

(3) For that the learned courts below grossly erred in law in holding that the suit was under-valued and further the learned lower appellate court erred in holding that Section 7(iv)(a) of the Court Fees Act is applicable to the facts of the case. The plaintiffs are not required to ask for cancellation of a void sale deed executed by defendant No.1.

(4) For that the learned lower appellate court grossly erred in law in holding that the suit was bad for indefininteness and that the plaintiffs should have asked for partition and allotment of their respective shares. (5) For a that the learned lower appellate court grossly erred in law in holding that the plaintiffs should have asked for cancellation or partial cancellation of the sale deed, Ext.4, under sections 31(1) or 32 of the Specific Relief Act, inasmuch as the said provisions have no application to the facts of the present case at all. This erroneous approach has vitiated the entire decision.”

6. Heard Mr. Dayananda Mohapatra, learned Advocate, along with Mr. Maharshi Mohapatra, learned Advocate for the appellants. None appeared for the respondents.

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