ORDER

The present petition under Article 227 of the Constitution of India is directed against the order dated 21.08.2019 passed by Civil Judge, Class-I, Joura District Morena in case No.35-A/2018, whereby an application filed by the respondents/defendants No.1,2 and 3 under Order 7 Rule 11 CPC has been allowed and the petitioner/plaintiff has been directed to pay advalorem court fee @ 12%.

2. Short facts of the case are that the petitioner/plaintiff had filed a suit for declaration of title and grant of permanent injunction against the present respondents/defendants averring that the respondent No.1 is father of the plaintiff and defendants No. 2 to 4 are his brothers, and all of them are living jointly in the ancestral house situated at Nagar Panchayat Joura, Ward No.5, House No.37, Vyas Gali, whose specifications are 15 ft. from East to West and length is 80 ft. from North to South, admeasuring 1200 sq. ft. and is constructed three stories. In the plaint, it has been further averred that the father of the plaintiff i.e. respondent No.1 had purchased the said land from one Tunda Kori vide registered sale deed dated 24.08.1960 and for construction of the house on it the plaintiffs and respondents together contributed their own earned money apart from the ancestral fund derived out of the ancestral property and since plaintiff and defendants No. 2 to 4 are owners and possession holders of equal parts in the said house, a Will executed by the respondent No.1/defendant in favour of the other respondents/defendants was per se illegal, as he has no right to bequeath the said property. Further in the plaint, it has been averred that the respondents No.2 to 4 had conspired and got mutation of their names on 1/4th part of agricultural land situated in village Alapur, survey No.67, 68, 83 total admeasuring 04 Bigha and 12 Viswa belonging to one Ramdayal S/o Raghunath Prasad, whose adopted son Kamalkant is the plaintiff's biological eldest son, without the knowledge of Kamalkant, against which an appeal has been preferred before the Court of Sub Divisional Officer, Jaura in which notices have been issued to respondents No.2 to 4. Due to the aforesaid fact the defendants No. 2 to 4 with an intention to evict the plaintiff from the disputed property conspired and got a sale deed dated 17.05.2017 executed in favour of defendant No.2 by the defendant No.1, which is void as regard to rights of the plaintiff.

3. It was further averred in the plaint that the defendant No.1 has no right to execute the sale deed, as the disputed property was constructed out of an ancestral fund and by the funds contributed by the plaintiff and defendants No.2 to 4 but as on 28.01.2018 at around 10 a.m. the defendant No.2 came to the plaintiff and told him to vacate the house on the premise that he has purchased the same through a registered sale deed, though the plaintiff/petitioner was having 1/4th share in the said property but he was threatened which gave a cause of action to file the present suit for declaration of title and permanent injunction.

4. Defendant No.1 & 2 filed written statement in the matter and denied the right of petitioner on the disputed land, whereas the respondent No.4 had remained ex-parte. During the pendency of the present civil suit the defendants No.1 to 3 had filed an application under Order 7 Rule 11 CPC and averred therein that since the plaintiff had challenged the sale deed dated 17.05.2017, he has to pay advalorem Court fees on the same, as the plaintiff has also prayed for declaration of his title on 1/4th part of the said land and as the plaintiff has only paid Court fees of Rs.600/- in respect of 1/4th part of the said property which is worth Rs.4,12,000/- he was required to pay 12% advalorem Court fees.

5. In reply to the said application, the plaintiff/petitioner contended that since the petitioner/plaintiff himself is not a party to the sale deed dated 17.05.2017, which he is seeking to get declared void, the plaintiff