1 2025:CGHC:4937 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 1013 of 2024 1 - Durgesh Yadav S/o Late Komal Prasad Yadav Aged About 55 Years (Fathers Name Late Komal Yadav Is Wrongly Mentioned Instead Of Late Komal Prasad Yadav) R/o House No. V/6 Janata Quarter Padmanabhpur Durg Tehsil And District - Durg (C.G.) 2 - Brijesh Yadav S/o Late Komal Prasad Yadav Aged About 53 Years R/o House No. V/6 Janata Quarter Padmanabhpur Durg Tehsil And District - Durg (C.G.) ... Petitioners/ Plaintiffs versus 1 - Pushpalata Yadav W/o Late Komal Prasad Yadav Aged About 72 Years R/o House No. Hig 129 Pragati Maidan Borsi Durg Tehsil And District - Durg (C.G.) (Defendant No. 1) 2 - Geeta Yadav W/o Late Rajesh Yadav Aged About 56 Years R/o Lata Kunj Krishak Nagar Jora Raipur Tehsil And District - Raipur (C.G.) (Defendent No. 2) 3 - Kundan Yadav S/o Late Rajesh Yadav Aged About 25 Years R/o Lata Kunj Krishak Nagar Jora Raipur Tehsil And District Raipur (C.G.) (Defendant No. 3) 4 - Rajesh Sharma S/o Sakhichand Sharma Aged About 46 Years R/o House 1077 Indira Nagar Bmy Charoda Tehsil Patan District - Durg (C.G.) (Defendant No. 4) 5 - Chhattisgarh Housing Board Behind LIC Building Padamanabhpur Durg Tehsil And District - Durg (C.G.) Defendant No. 5 (Complete Name Is Not Mentioned In The Cause Title Of The Impugned Order) ---- Respondents For Petitioners : Mr. Avinash Chand Sahu, Advocate. For Respondents No.1 & 4 : Mr. Ashwin Panickar, Advocate. For Respondent No.5 : Mr. Atul Kumar Kesharwani, Advocate. Digitally signed by SMT NIRMALA RAO -2- Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 28.01.2025 1. The petitioners/plaintiffs have challenged the order passed by the learned 8th Additional District & Sessions Judge, Durg, Chhattisgarh dated 11.7.2024 in Civil Suit No. CS A/68/2022 whereby an application moved by defendants No.1 & 4 under Order 7 Rule 11 of CPC was partly allowed, and the plaintiffs were directed to pay ad valorem court fee according to the valuation of the suit. 2. Learned counsel appearing for the petitioners would submit that the plaintiffs filed a suit for declaration of title, permanent injunction and further declaration to declare the sale-deed dated 11.11.2022 as null and void and not binding upon the plaintiffs. He would contend that the suit property was sold by defendant No.1 to respondent No.4 herein. He would further submit that the suit property is the ancestral property, and the plaintiffs have an equal right over that property, therefore, such a prayer was made. He would contend that defendants No.1 & 4 moved an application under Order 7 and Rule 11 of CPC for rejection of the plaint on the ground that the plaintiffs have not valued the suit properly and did not pay the requisite court fee. He would also submit that the learned trial Court directed the plaintiffs to affix proper court fees according to the valuation of suit. He would further contend that as the plaintiffs were not parties to the registered sale-deed, therefore, they are not required to pay ad valorem court fees according to the valuation of the suit. In support thereof, he placed reliance on the judgment passed by the Hon’ble Supreme Court in 3 the matter of Suhrid Singh alias Sardool Singh vs. Randhir Singh and Others, reported in (2010) 12 SCC 112. 3. On the other hand, learned counsel for respondents No.1 & 4 would oppose the submissions made by counsel for the petitioners. He would submit that the learned trial Court has rightly passed the order and directed the plaintiffs to affix ad valorem court fee according to the valuation of the sale-deed. He would further submit that the petition deserves to be dismissed. 4. Learned counsel for respondent No.5 would support the order passed by the Court below. 5. I have heard learned counsel for the parties and perused the documents present on the record. 6. A perusal of the plaint and pleadings made in the application under Order 7 Rule 11 of CPC would make it clear that a registered sale- deed was executed by defendant No.1 in favour of defendant No.4. The plaintiffs were not parties to that instrument. It is also not in dispute that the alienated property is the ancestral property of the parties. 7. The Hon’ble Supreme Court in the matter of Suhrid Singh (supra), while dealing with a similar issue in paras 6 & 7 held as under:- “6. The second proviso to section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall -4- be on the market value of the houses, under clause (e) thereof. 7. 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 nonest, 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 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.” 8. In the present case, since the plaintiffs are not the executant of the sale-deed, they have valued the suit based on the value of the registered sale-deed. The plaintiffs are not required to pay ad valorem court fees according to the provisions of Section 7(iv)(c) of the Court-fees Act, 1870. Consequently, the order passed by the learned Court below dated 11.7.2024 is hereby set aside. 9. With the aforesaid observations, the petition is allowed. Sd/- (Rakesh Mohan Pandey) Judge Nimmi