Hemant Gupta, J. - (1.) THE challenge in the present revision is to the order passed by the learned trial Court dated 6.11.2006 whereby the plaintiff -petitioner was called upon to affix the ad valorem Court fee on the amount of Rs. 13,52,000/ -.
(2.) THE plaintiff -petitioner filed a suit for declaration challenging the power of attorney allegedly executed in favour of defendant No. 1 on 16.10.1996; Gift Deed dated 10.1.2005 executed by defendant No. 1 in favour of defendant Nos. 2 & 3 and further mortgage of the land by defendant Nos. 2 & 3 with defendant No. 4. It was alleged that defendant No. 1 is her real sister and she was allowed to cultivate the land owned and possessed by the plaintiff with the understanding that she will pay 1/3rd of the total produce as batai to him. But the defendant No. 1, while abusing the trust deposed in her, executed a Gift Deed in favour of defendant Nos. 2 & 3 and subsequently, defendant Nos. 2 & 3 mortgaged the suit land. The said document came to be challenged in the present suit. The defendant Nos. 1 to 3 moved an application before the learned trial court under Order 7 Rule 11 of the Code of Civil Procedure, for rejection of the plaint for not affixing the ad valorem Court fee. The said application was allowed by the learned trial Court holding that the plaintiff has delivered the possession to defendant No. 1 for cultivation on 1/3rd batai and when the plaintiff is challenging the Sale Deed, Gift Deed and Power of Attorney, then the plaintiff has to determine the value of the suit as per the Article 1, Schedule 1 of the Court Fees Act, 1870 (hereinafter referred to as the Act). It was found that the plaintiff is out of possession and possession cannot be delivered to him unless and until Gift Deed and mortgage are declared to be null and void and, therefore, the plaintiff is required to affix the ad valorem Court fee.
(3.) LEARNED Counsel for the petitioner has vehemently argued that the challenge in the suit is for cancellation of the document and the plaintiff has not claimed relief of possession. It is contended that only if the possession is claimed as substantive or consequential relief, the plaintiff is required to affix the ad valorem Court fee under Article 1, Schedule 1 of the Act and not otherwise. It is further contended that in the suit for declaration the plaintiff has averred that the defendant No. 1 would be deemed to be tenant and for possession, the plaintiff is to seek recourse to the proceedings applicable for eviction of the tenant from the agricultural land. It is also pointed out that the petitioner has in fact, initiated proceedings before the Revenue Authority -for eviction of the defendants.;