HARBANS LAL, J. - (1.) THE question to be determined in this revision petition is as to what amount of court fee the plaintiff -petitioner is liable to pay in the suit filed by him in the Court of the Subordinate Judge Ist CLass, Fatehbad. In order to appreciate the real nature of the controversy involved, the relevant facts may be summarised.
(2.) THE plaintiff petitioner was allotted the suit land by the Custodian. One Lal Singh (now deceased) wanted to purchase the same and had entered into an agreement of sale with the plaintiff -petitioner. However, as permanent rights of ownership relating to the said land had not yet been conferred on the plaintiff -petitioner, he agreed to transfer the same after the conferment of such rights. The said Lal Singh succeeded in persuading the plaintiff -petitioner to execute a Mukhitiarnama (special power of attorney) in his favour plea that he will be able to get the case regarding conferment of ownership rights decided successfully from the Custodian in favour of the plaintiff -petitioner. Thereafter, Lal Singh dishonestly and clandestinely executed a sale deed on August 5, 1968, in favour of his grand daughter, Balbir Kaur (now respondent No. 1). After coming to know of the fraud played on him in April, 1971 the plaintiff -petitioner filed the suit for possession of the suit land through cancellation of the said sale deed seeking declaration to the effect that the sale deed, in question, was based on fraud and was liable to be cancelled. The suit was contested by the vendee and on the pleadings of the parties, a number of issues were framed relating to the validity of the Mukhtiarnama, the sale deed and the locus standi of the plaintiff -petitioner to file the suit. Issue No. 5 was to the effect whether the suit was not properly valued for the purpose of court fee and jurisdiction. Though the entire evidence was adduced by both the parties, the suit was not decided finally as the trial court held that the plaintiff -petitioner was liable to pay court -fee advalorem on the price of the land which was Rs. 30,000/ - according to the sale deed under Schedule I Article I of the Court Fees Act, (hereinafter called the Act). The plaintiff -petitioner was thus, directed to make good the deficiency on or before July 20, 1977, and the case was fixed for pronouncement of the order on July 21, 1977. It is this finding relating to the court fee which has been challenged in the present revision petition. It is not disputed on either side that before the plaintiff -petitioner can succeed in his claim for possession of the suit land, he must get a declaration that the sale deed, in question, was invalid and vitiated and did not stand in his way in getting the suit land. According to the learned Counsel for the plaintiff -petitioner, it is quite clear from the averments in the plaint that the suit was not merely for possession simpliciter, but for declaration for getting the sale -deed set aside and possession as a consequential relief. In these circumstances, the plaintiff -petitioner was entitled to fix the amount for the purpose of court fee under section 7(iv)(c) of the Act and not liable to pay the same on the price of the land as mentioned in the disputed sale deed. In support of this proposition, reliance has been placed on the Full Bench decisions of this Court as reported in Vishwa Nath and another v. Smt. Sita Bai Anand and others, (1952) 754 P.L.R. 335, Parbhu and others v. Girdhari, A.I.R. 1965 Pb. 1. and one decision by the Division Bench in Tarlok Singh v. Daljit Kaur, A.I.R. 1961 Pb. 426.
(3.) IN Vishwa Nath's case (supra), the following question was referred for decision by the Full Bench : - "Whether the valuation of the court fees of a suit to set aside a decree where in execution of such decree property has been sold and possession given, and where recovery of possession given, and where recovery of possession of the property so sold is sought in the suit, falls under section 7(iv)(c) of the Court Fees Act, and if not what court fee is payable" ? After discussing the decisions of the various High Courts including that the Lahore Court, it was held : - "There is, therefore, preponderance of authority in favour of the view that where a plaintiff prays for possession of property which has been sold in execution of a decree by a competent court, he must also ask for a declaration that the decree is not binding upon him and his suit, therefore, falls under section 7(iv)(c) of the Court Fees Act." ;