HIGH COURT OF RAJASTHAN
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JAGAT NARAYAN, J. -
(1.)THIS is a revision application by the plaintiff against an order of the civil Judge, Bambhar, directing him to pay. separate court-fee on the relief of possession.
(2.)THE plaintiff originally instituted the present suit for a declaration of his title and for the cancellation of the sale-deed transferring a certain plot of land the market value of which is Rs. 1060/ -. He paid ad valorem court-fees on the market value of the property for the relief of cancellation of sale-deed under sec. 38 (l) (a) of the Rajasthan Court-fees & Suits Valuation Act 1961, which runs as follows : "s. 38. Suits for cancellation of decrees, etc.- (1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be - (a) if the whole decree or other document is sought to be cancelled the amount or value of the property for which the decree was passed or other document was executed. " He subsequently got the plaint amended so as to claim the relief of possession also over the plot of land. He did not pay any additional court-fee on this relief. His contention was that the relief of possession was ancillary to the main relief of cancellation of the sale-deed within the meaning of the proviso to sec. 6 (1) of the Rajasthan Court-fees & Suits Valuation Act, 1961, which runs as follows: - "provided that, if a relief is sought only as ancillary to the main relief the plaint shall be chargeable only on the value of the main relief. "
The trial court overruled the above contention following the decision of a Division Bench of the Oudh Chief Court in Dhondhey Singh vs. Patraj Kunwar (l ). In that case the plaintiff against whom mortgage decree was passed brought a suit to set aside the mortgage decree and the sale in execution of the decree and for possession of the property sold. It was held that (1) for cancellation of the decree court-fee was payable under section 7 (iv-a) on the amount of the decree and not on the value of the property in respect of which the decree was passed, (2) no separate court-fee was payable on the relief for cancellation of the sale-deed because the cancellation of the decree necessarily involved cancellation of all subsequent proceedings including the sale-deed and (3) claim to actual possession being based on a distinct and separate cause of action from the cancellation of the decree a separate court fee is payable on the claim for possession.
On behalf of the plaintiff it is contended before me that the above decision does not lay down the law correctly and that the claim to actual possession being a consequence of the cancellation of the decree no separate court-fee could be charged on it. Reliance is placed on the decision of a learned single Judge of the Madras High Court in Thangachi Ammal vs. Mohamed Moideen Maricair (2) in which reliance was placed on same Division Bench decisions of the same Court.
I have carefully considered both the decisions and I am of the opinion that the relief of possession is claimed as a consequence of the relief of cancellation of the sale-deed and is therefore ancillary to it. The main relief claimed is really the cancellation of the sale-deed and possession is claimed in consequence of the grant of this main relief.
I accordingly allow the revision application, and hold that the court-fee already paid is sufficient. .
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