- (1.) THIS revision petition under Section 115 of the Code of Civil Procedure is directed against the order of the learned Additional Civil Judge, Jaipur City dated 8th December, 1976.
(2.) THE brief facts, which are relevant for the disposal of this revision petition, are that the Urban Improvement Trust, Jaipur City filed a suit against Makhan Lal, Rajmal and Kailash Narain for declaration and possession. THE suit was valued at Rs. 10,000/ -. Defendants No. 1 and 2 filed their written statements on 25th March, 1976, while the defendant No. 3 filed his written statement on 3rd April, 1976 Defendants No. 1 and 2 raised issue that the valuation of the suit property is Rs. 50,000/-, while the plaintiff has valued the suit at Rs. 10,000/. It was, therefore, contended that the court-fee paid is insufficient and that if the suit is valued at Rs 50,000/-, then the subject-matter of the suit is liable to be tried by the District Judge, and the Additional Civil Judge will have no pecuniary jurisdiction to try the suit. On behalf of the defendant No. 3, it was contended that he is an employee of the Urban Improvement Trust, and that the land in question was alloted to him by the Urban Improvement Trust for a sum of Rs. 999/ -. It was further contended that thereafter the defendant No. 3 secured a loan of Rs. 7,720/- from the Urban Improvement Trust for constrution purposes. As he was in need of money he executed an agreement for sale in favour of the defendants No. 1 and 2, and received Rs. 5,000/- towards the sale consideration. Later on, a suit bearing No. 72/1972 was filed in the court of learned Civil Judge, Jaipur City, Jaipur by the defendants No. 1 and 2 against the defendant No. 3, and a decree was obtained in favour of the plaintiffs on 4th December, 1972. This suit was for specific performance of the contract. In execution of this decree a registered sale-deed in fovour of the defendants No. 1 and 2 was executed on 6th May, 1975. The contention of the plaintiff is that the land was alloted to the defendant No. 3 on concessional rates as he was an employee of the Urban Improvement Trust. It is further contended that the defendant No. 3, according to the terms of allotment, could not alienate the plot of land before the expiry often years from the date of allotment. The plaintiff has, therefore, instituted the present suit with the prayer that the decree obtained in favour of the defendants No. 1 and 2 and against the defendant No. 3, on December, 1972, in Civil Suit N>. 72/1972, from the Court learned Civii Judge, Jaipur City, Jaipur, and the registered sale deed executed in favour of the defendants No. 1 and 2 on 6th May, 1975, be declared as ineffective and inoperative and be accord-ingly cancelled. The other relief which the plaintiff, has sought is that the possession of the property in dispute be restored to the plaintiff, and he be declared the owner of the property in dispute. On the pleadings of the parties, issues were struck on 16th September, 1976. Issue No. 9 reads as under: D;k rk;qu ukfy'k De fD;k x;k gs rfkk bl Dkj. k vnkyr gktk Dks lquokbz Dk vf/kDkj izkir ugha gs\** The learneD ADDl. Civil JuDge, Jaipur City DeciDeD the issue in favour of the plaintiffs anD helD that the court-fees paiD is sufficient anD that the Court has jurisDiction to entertain anD aDjuDicate upon the subject-matter of the suit. DefenDants No. 1 anD 2 feeling aggrieveD against the orDer of the learneD ADDl. Civil JuDge have fileD the present revision petition,
(3.) IT has been contended on behalf of the petitioners that the learned lower Court has erred in law in deciding the issue No. 9 in favour of the plaintiff. IT has been contended that even in para No. 17 of the plaint, it has been stated that the court-fees is paid as provided under Section 24 (a) of the Rajasthan Court Fees and Suits Valuation Act, 1961 (hereinafter to be referred to as the Act ). IT was further contended that as the suit relates to the cancellation of the decree and the registered instrument of sale and as the possession of the suit property is sought along with declaration of its ownerships the suit was liable to be valued in accordance with Section 24 (a) of the Act, and not in accordance with section 38 of the Act. IT was further contended that Section 9 of the Act provides that a document falling within two or more descriptions in this Act shall where the fees chargeable thereunder are different, be chargeable only with the highest of such fees. IT was also contended that as the plaintiff was neither a party to the original suit No. 72/1972, nor was a party to the execution of the registered sale-deed dated 6ih May, 1975, the court-fees shall be chargeable under Section 24 (a), and not under Section 38 of the Act. On behalf of the plaintiff, it was contended that the sale-deed dated 6th May, 1975 was for a sum of Rs. 10,000/ -. It is through this instrument of sale that the defendants No. 1 and 2 claimed themselves to be the owner and, as such, the court-fee which has been paid by the plaintiff is sufficient. It was also contended that wrong quoting of section under para 17 of the plaint does not necessarily change or alter the nature of the suit. The allegations contained in the plaint, is taken together, would clearly indicate that the suit falls within the ambit of Section 38 of the Act. It was, therefore, contended that the view taken by the learned lower Court is correct and does not call for any interference on the revisonal side. On behalf of the defendant No. 3, it was contended that the suit has been valued correctly and the court-fee has been correctly paid. Section 24 (a) of the Act reads as under "24. Suits for declarationin a suit for a declaratiory decrees or order, whether with or without consequential relief, not falling under section 25. (a) where the prayer is for a declaration and for possessionof the property to which the declaration relates, fee shall be computed on the market value of the property, subject to a minimum fee of twenty rupees;" (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . (d ). . . . . . . . . . . . . . . . . . . . . . . . . . . (e ). . . . . . . . . . . . . . . . . . . . . . . . . . . Section 38 of the Act read as under "38. Suits for cnacellation 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 the property for which the decree was passed or other document was executed; and (b) if a part of the decree or other document is sought to be cancelled,such part of the amount or value of the property. (2) It the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or in the plaintiff's share in any such property, fee shall be computed on the value of such property or share or on the amount of decree, whichever is less. Explanation :- I suit to set aside an award shall be deemed to be a suit to set aside a decree within the meaning of this section. " ;