Tek Chand And Another v. Manjeet And Another

2023:PHHC:075363

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Date of Decision: 15.05.2023 Tek Chand and another ....Petitioners

Versus

Sh. Manjeet and another ....Respondents

CORAM:

HON'BLE MR. JUSTICE ARUN MONGA Present:- Dr. Anand K. Bishnoi, Advocate for the petitioners.

Mr. AbhishekSobti, Advocate for respondent No.1.

***** ARUN MONGA, J. (ORAL) Petition herein is for setting aside impugned order dated 18.01.2023 (Annexure P-1) passed by learned Civil Judge (Sr. Divn.), Pataudi, whereby plaintiff/petitioners have been directed to affix the advalorem Court fee on the sale consideration mentioned in the sale deed in question.

2.

The revision petition is premised on the averments that petitioner/plaintiffs filed a suit for declaration to the effect that as per Jamabandi for the year 2016-17 and mutation No.3700, 1038 respondent No.1/defendant, father of the plaintiffs, was owner in possession of suit land to the extent of his share. Aforesaid land is joint Hindu family coparcenary property/ancestral property of respondent No.1/defendant, namely, Manjeet Singh and his sister and mother. However, in order to deprive the rights of plaintiffs in the suit land, respondent No.1/defendant No.1 executed a sale deed dated 09.06.2021, in favour of respondent No.2/defendant No.2. It was -1-

further pleaded that said sale deed and subsequent entries in the revenue records on the basis thereof are illegal, null and void and not binding on the plaintiffs.

2.1.

Respondent No.1 filed a written statement and denied that plaintiffs are entitled to get the share of ancestral property in question. Respondent No.2/defendant No.2 filed an application under Order 7 Rule 11 CPC for dismissal of suit claiming that the sale deed executed by respondent No.1/defendant No.1 in favour of respondent No.2/defendant No.2 is for sale consideration of Rs.27,38,738/- and as the plaintiffs are also seeking the relief of permanent injunction they are required to affix the advalorem Court fees on the basis of sale consideration as mentioned in sale deed instead of only stamp of jurisdiction value of Rs.200/- only. 2.2.

Petitioner/plaintiffs filed a reply and submitted that application is not maintainable and has been filed just to prolong the case. 2.3.

Vide impugned order, the Ld. Trial Court has allowed the application and plaintiffs were directed to file advalorem Court fees on the sale consideration as mentioned in sale deed in question. 3.

Learned counsel for petitioners has handed over report of process server in the course of hearing, which is taken on record and marked as Annexure 'A'. Same reveals that even though respondent No.2 has himself given the address, in his application under Order 7 Rule 11 CPC filed before the Ld. Trial Court, on which summons were sent, yet the report of process server reveals that he does not reside at the given address and therefore, service could not be effected. Be that as it may, I am of the view that respondent No.2 herein has otherwise knowledge of the instant proceedings and he is choosing to not appear and answer the claim of petitioners. Service upon respondent No.2 is thus deemed to be effected. -2-

4.

Heard.

5.

It is pleaded in para No.5 of the plaint that plaintiffs are seeking relief on the basis of assertion that suit property being ancestral the same has to be devolved upon Class-I legal heirs as per Hindu Succession Act, 1956 and as a consequence thereof, a declaration has also been sought to set aside the impugned sale deed dated 09.06.2021 and the subsequent mutation carried out on the basis thereof, being not binding on the plaintiffs as they were neither party to the same nor even otherwise property being ancestral, could not have been sold behind their back. In this regard, the prayer clause of the suit is relevant, which for ready reference is being reproduced herein below:

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8.

In present case, the relief claimed is in regard to agricultural land. Hence, in terms of section 7(v) of the Courts Fees Act, 1870, the court fee has to be reckoned with reference to the revenue payable under subclauses (a) to (d) thereof. (2010) 12 Supreme Court Cases 112 -4-

11.

Pending application(s), if any, shall also stand disposed of. ( ARUN MONGA ) JUDGE May 15, 2023 ashish Whether speaking/reasoned:

Yes/No Whether reportable:

Yes/No -5-