1 2025:CGHC:13660 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 121 of 2024 Zaheeruddin S/o Late Habeebuddin Aged About 60 Years R/o Indira Market, Mini A-Block, Ground Floor, Shop No. 30, District - Durg, (C.G.) (Defendant No. 1) ... Petitioner(s) versus 1 - Ameenuddin Qureshi S/o Late Shri Babu Bhai Aged About 45 Years R/o Anas Kirana Stores, Near Muslim Sanskruti Bhawan, Kelabadi, Durg, Tehsil And District - Durg (C.G.) (Plaintiff No. 1) 2 - Shama Nigar D/o Khalil Ahmad And Late Smt. Naseem Akhtar Aged About 32 Years Represented By General Mukhtyar (Father) Khalil Ahmad, S/o Shakur Ahmad, Aged About 59 Years, R/o Anas Kirana Stores, Near Muslim Sanskruti Bhawan, Kelabadi, Durg, Tehsil And District - Durg (C.G.) (Plaintiff No. 2) 3 - Shama Afroz D/o Khalil Ahmad And Late Smt. Naseem Akhtar Aged About 30 Years Represented By General Mukhtyar (Father) Khalil Ahmad, S/o Shakur Ahmad, Aged About 59 Years, R/o Anas Kirana Stores, Near Muslim Sanskruti Bhawan, Kelabadi, Durg, Tehsil And District - Durg (C.G.) (Plaintiff No. 3) 4 - Malka Jahaan D/o Khalil Ahmad And Late Smt. Naseem Akhtar Aged About 28 Years Represented By General Mukhtyar (Father) Khalil Ahmad, S/o Shakur Ahmad, Aged About 59 Years, R/o Anas Kirana Stores, Near Muslim Sanskruti Bhawan, Kelabadi, Durg, Tehsil And District - Durg (C.G.) (Plaintiff No. 4) 5 - Maziya Jahaan D/o Khalil Ahmad And Late Smt. Naseem Akhtar Aged About 26 Years Represented By General Mukhtyar (Father) Khalil Ahmad, S/o Shakur Ahmad, Aged About 59 Years, R/o Anas Kirana Stores, Near Muslim Sanskruti Bhawan, Kelabadi, Durg, Tehsil Digitally signed by AJAY KUMAR DWIVEDI Date: 2025.03.22 15:03:39 +0530 2 And District - Durg (C.G.) (Plaintiff No. 5) 6 - Smt. Akhtar Begum Wd/o Late Babu Bhai Aged About 64 Years Represented By General Mukhtyar Ameenuddin Qureshi, S/o Late Shri Babu Bhai, Aged About 45 Years, R/o Anas Kirana Stores, Near Muslim Sanskruti Bhawan, Kelabadi, Durg, Tehsil And District - Durg (C.G.) (Plaintiff No. 6) 7 - Tabassum Qureshi D/o Late Babu Bhai Aged About 42 Years Represented By General Mukhtyar Ameenuddin Qureshi, S/o Late Shri Babu Bhai, Aged About 45 Years, R/o Anas Kirana Stores, Near Muslim Sanskruti Bhawan, Kelabadi, Durg, Tehsil And District - Durg (C.G.) (Plaintiff No. 7) 8 - Tarannum Qureshi D/o Late Babu Bhai Aged About 40 Years Represented By General Mukhtyar Ameenuddin Qureshi, S/o Late Shri Babu Bhai, Aged About 45 Years, R/o Anas Kirana Stores, Near Muslim Sanskruti Bhawan, Kelabadi, Durg, Tehsil And District - Durg (C.G.) (Plaintiff No. 8) 9 - Salma Begum Wd/o Late Babu Bhai Aged About 42 Years R/o Dewanchi Puran, Chhindwara, Madhya Pradesh (Plaintiff No. 9) 10 - Hasmat D/o Late Babu Bhai Aged About 14 Years Minor Being Represented By Their Mohter Salma Begum, Wd/o Late Babu Bhai, Aged About 42 Years, R/o Dewanchi Puran, Chhindwara, Madhya Pradesh (Plaintiff No. 10) 11 - Hayat Fatima D/o Late Babu Bhai Aged About 12 Years Minor Being Represented By Their Mohter Salma Begum, Wd/o Late Babu Bhai, Aged About 42 Years, R/o Dewanchi Puran, Chhindwara, Madhya Pradesh (Plaintiff No. 11) 12 - Ajay Waghela S/o Late Balram Bhai Waghela Aged About 57 Years R/o H. No. 210, Arya Nagar, Durg, Tehsil And District - Durg, (C.G.) (Defendant No. 2) 13 - Khomlal Dewangan S/o Bhuneshwar Dewangan Aged About 52 Years R/o Village Mohlai Colony, Basti, Durg, Tehsil And District Durg, (C.G.) (Defendant No. 3) 14 - Dashrath S/o Shri Sukhru Aged About 66 Years R/o Village Nawagaon, Tehsil And District - Rajnandgaon (C.G.) (Defendant No. 4) 15 - Deepak Gandhi S/o Shri Madan Lal Ji Gandhi Aged About 51 Years R/o Mahesh Colony, Flat No. C-13, Tehsil And District - Durg, (C.G.) (Defendant No. 5) 3 16 - Smt. Usha Dubey Wd/o Late Shri Puran Prasad Dubey Aged About 56 Years R/o Naka Dipra, Beside Shyamlal Pade Lane, Durg, Tehsil And District - Durg, (C.G.) (Defendant No. 6) 17 - Khemlal Dewangan S/o Late Faguwa Ram Dewangan Aged About 68 Years R/o Village Mohlai, District - Durg, (C.G.) (Defendant No. 7) 18 - State Of Chhattisgarh Through District Magistrate, Durg, (C.G.) (Defendant No. 8) ... Respondent(s). For Applicant(s) : Mr. Arpit Agrawal, Adv. For Res No.1 to 11 : Mr. Shalvik Tiwari, Adv. with Mr. Waquar Nair, Adv. For Res No.18/State : Mr. Anurag Tripathi, PL. SB : Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board 21.03.2025 1. This revision has been preferred against the order dated 06.07.2024 passed by the Sixth Civil Judge, Class-II, Durg (CG) in Civil Suit No.- A/8/2023, whereby, application preferred by the applicant/defendant No.1 under Order 7 Rule 11 CPC has been rejected. 2. Facts of the case, in brief, are that respondents No.1 to 11/plaintiffs filed a civil suit for declaration of title and to declare them as legal heirs of late Habeebuddin and further to declare the sale deed executed by defendant No.1 in favour of other defendants as null to void and also sought relief to quash the mutation order passed in favour of the purchaser. In the said civil suit, the petitioner/defendant No.1 filed application under Order 7 Rule 11 CPC raising an objection that as the sale deed has been executed wayback on 11.02.2010 so the suit is apparently time barred and no proper valuation has been made according 4 to the plaintiff as per market value of the suit land. However, the said objection has been rejected by the trial Court. Hence, this revision. 3. Learned counsel for the applicant would submit that the respondents/plaintiffs were well aware about the sale deed immediately after the execution of said sale deed and only by clever drafting created cause of action in the year 2020. He submits that as per principles laid down in T. Arivandandam Vs. T.V. Satyapal [(1977) 4 SCC 467] which has also been followed in the matter of Raghvendra A Sharan Singh Vs. Ram Prasanna Singh (dead) by Legal [(2020) 16 SCC 601], if clever drafting has created the illusion of a cause of action, it should be nipped in the bud. 4. Heard learned counsel for the parties and perused the documents annexed with the petition. 5. It is well established that while considering the application under Order 7 Rule 11 CPC the Court has to see only averments in the plaint and the accompanying document relied upon in the plaint and the fact elicited from the plaintiff by examining him under Order 10. The Court cannot look into the defence set up by the defendant in their written statement or the application while deciding the application under the aforesaid provision. 6. Reverting back to the facts of the present case, the plaintiffs have filed civil suit to declare them as legal heir of late Habeebuddin. The said declaration is continuous cause of action and further in respect of the sale deed they have pleaded regarding knowledge of the sale deed in the year 2020. This Court is of the view that the issue of limitation raised by 5 the defendant is mixed question of law and fact as the plaintiff is not the party in the alleged sale deed. 7. Further, according to principles laid in the matter of Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Ors [(2010) 12 SCC 112], the plaintiff is not required to pay court fees according to the amount of the sale deed. The said proposition has been clarified :- "6. Where the executant of a deed wants it 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 non- est, or illegal or that it is not binding 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 non- est/ 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 relief, the court fee shall be computed according to the amount 6 at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7." 8. Further, the plaintiffs have specifically averred in para 2 of the plaint that subject land is agricultural land and accordingly they have valued their suit. 9. Considering the aforesaid principles and facts of the case, this Court is not inclined to interfere in the order impugned at this stage. 10. However, since the plaintiff has paid court fees in respect of possession but in the relief clause no such relief has been sought in this regard, therefore, the liberty is reserved in favour of the petitioner/defendant to file appropriate application for framing of proper issue, if no issue has been framed so far and may raise all such grounds in view of proviso of Section 34 of the Specific Relief Act at appropriate stage. 11.With the aforesaid observation, this petition stands disposed of. Sd/- (Deepak Kumar Tiwari) Judge Ajay