MANOJ KUMAR Vs. SHASHI BHUSHAN SHARMA

JUDGEMENT

(1.) The petitioner is against the order passed rejecting an application filed by the defendant that the court fee has not been affixed correctly by the plaintiff. The suit has been filed for a declaration that he is a joint owner of the property with the defendant. The first defendant had taken a contention that the plaintiff had executed a power of attorney in his favour and that as such power of attorney, he has transferred the property to the second defendant.

(2.) After the defendant brought the pleadings of an alleged power of attorney and of sale, the plaintiff has amended the plaint to include the contentions brought by the defendant. He has averred that he did not execute the power of attorney and the sale by the first defendant as such alleged power of attorney is not valid. He has brought an amendment to the prayer to seek for partition and separate possession of his half share in the property.

(3.) The learned counsel contends that a separate possession asked for would require a court fee to be affixed for recovery of possession. It is further his contention that the question of whether the power of attorney was valid or not would be decided only at the time of suit and if the plaintiff assails the sale deed, he has to affix ad valorem court fee on the value of the property that has been sold. The counsel relies on two decisions of this court in Smt. Parkasho @ Parkash Kaur Versus Smt. Surinder Kaur and others,2012 4 LawHerald(P&H) 2955 and Satwinder Kaur @ Satinder Kaur Versus Surjeet Singh and others, 2007 146 PunLR 346 which, according to the counsel, holds that if there is a sale through power of attorney and a claim is made for cancellation of the sale, ad valorem court fee has to be affixed.