- (1.) In this CO 2920 of 2011 the order impugned dated 26th August, 2011 passed by the Ld. 2nd Civil Court (Jr. Div.) at Krishnanagar in Title Suit No. 94 of 2009 is assailed. The short facts of the case are as follows:- a) That the present Opposite Party (for short OP) is the Plaintiff in Title Suit No. 94 of 2009. The Plaintiff filed the said Title Suit for declaration that the so called Deed of Gift dated 13th June, 2007 is fraudulent, collusive and therefore void ab initio. The Plaintiff also prayed for a declaration that the purported Deed of Gift is not binding on him. b) The present petitioner/defendant states that he got 150 square feet shop room from the Opposite Party/Plaintiff by way of the said Deed of Gift herein being Deed No. 01185 of the year 2008. The said Deed of Gift was registered before the ARA-II, Kolkata. Upon obtaining the said Deed of Gift the Petitioner/Defendant is in possession of the suit property. c) The Petitioner/Defendant has further contended that after entering appearance in the said suit he has contested the same by filing written statement. Denying the material allegations in the plaint the petitioner has also pointed out that in connection with the said suit an application was filed by him under Section 151 of the Civil Procedure Code, inter alia, praying of holding enquiry in respect of the valuation of the suit property, court fees paid and the pecuniary jurisdiction of the Ld. Trial Court to hear the suit. The contention of the petitioner/defendant is that the said suit is for cancellation of the Deed of Gift of which the present Opposite Party/Plaintiff is the donor. The said Deed of Gift is valued at Rs. 1 lakh. Therefore, to decide the said suit its valuation for the purpose of fixing the pecuniary jurisdiction of the court must be Rs. 1 lakh and the present Opposite Party/Plaintiff be directed to pay ad volarem court fees on the said valuation. In view of such valuation at Rs. 1 lakh, the Ld. 2nd Civil Court (Jr. Div.) does not have the pecuniary jurisdiction to hear the suit. d) The Opposite Party/Plaintiff filed his written objection to the said application under Section 151 CPC. In the said written objection the OP/Plaintiff took the plea that the said suit is for declaration and injunction. Hence, for the purpose of valuation the present suit falls within the purview of Section 7 (iv) (b) of the West Bengal Court Fees Act, 1870. The OP/Plaintiff has also contended that the principal relief in the suit is one for declaration of title and injunction prayed for as a consequential relief. Therefore the suit has to be correctly valued under Section 7 (iv) (b) of the West Bengal Court Fees Act, 1970 and the Plaintiff has correctly paid the valuation at the time of filing the suit. e) It is also the case of the OP/Plaintiff that the execution of the purported Deed of Gift is not admitted. According to the Plaintiff merely by appending his signature to the Gift Deed does not amount to executing the same. The Plaintiff has further alleged that the Deed of Gift has been executed by practicing fraud. When such fraud is alleged there is no requirement to pay ad volarem court fees on the valuation of the Deed as argued by the present Petitioner/Plaintiff.
(2.) Therefore in all respects the Ld. 2nd Civil Court (Jr. Div.), Krishnanagar is competent to try the said suit. By the order impugned dated 21st June, 2011 the Ld. Trial Court was pleased to consider the rival pleadings and submissions of the parties as indicated above. The Ld. Trial Court observed that the present OP/Plaintiff has never admitted to execution of the purported Deed of Gift. The Plaintiff has applied for declaration and injunction and, therefore the Plaintiff is at liberty to pay court fees as per his own assessment. Since the Plaintiff claims to be already in possession of the suit property there is no requirement to seek further declaratory relief.
(3.) The Ld. Trial Court also noticed the argument of the Defendant to the effect that the Plaintiff has actually sought a relief of cancellation of the Deed of Gift. The relief of declaring the Deed of Gift as void ab initio will only arise if the said Deed of Gift is cancelled. Till such cancellation is adjudicated by the competent court the Plaintiff is required to pay ad volarem court fees on the valuation of Rs. 1 lakh.;