Suit for Declaration the alleged sale deeds of which they are not parties are null and void and not binding on them and also for injunction – court fee is only on Notional value but not on the value of sale deeds as per sec.24 of A.P.C.F. & S.V.ACT= 46. The reliance on Section 24 by the court below in this regard also cannot be sustained since the provisions therein would be attracted only if the petitioners have sought a declaration of their title and sought relief of possession/injunction or if they sought for a declaration that documents to which they are parties are null and void or a declaration of any nature other than one sought for in the plaint. The said provision would have no application in a situation where the petitioners are not parties to the documents which they wish to be declared as null and void and not binding on them. 2015 Oct. http://judis.nic.in/Judis_Andhra/list_new2.asp?FileName=13278



THE HONBLE SRI JUSTICE M.S. RAMACHANDRA RAO

CRP.No.4485 of 2012

27-10-2015

Nade Ali Mirza, S/o.Late Haider Ali Mirza, And othersRevision Petitioners

Mrs.Khalida Mohammed Salim Dawawala, W/o.Mohd. Saleem Dawawala, and
others....Respondents

Counsel for the petitioners: Sri Sri P.Venugopala Rao

Counsel for respondent Nos.1 to 7: Sri Rakesh Sanghi
Counsel for respondent No.30 : Sri Asadullah Sharif

<GIST:

>HEAD NOTE:


? Cases referred

1. ILR 34 Cal. 329 (P.C.)
2. AIR 1940 Mad. 113
3. 2007 (5) ALD 863
4. AIR 1976 AP 199
5. 1989 (3) ALT 629
6. 2005 (6) ALD 132
7. 1972 (2) APLJ 100
8. 2009 (1) ALT 219
9. 2000 (5) ALD 102
10. 2003 (4) ALD 345
11. 2007 (4) ALD 458
12. AIR 1939 Madras 462
13. AIR 2010 AP 178
14. AIR 2010 SC 2777
15. AIR 2014 SC 1286
16. AIR 2002 SC 233
17. AIR 1973 SC 2384
18. AIR 2010 SC 2807
19. (1980) 4 SCC 354
20. (1993) 2 ALT 48 (FB)
21. 35 Indian Appeals 98
22. 1956 An.W.R. 1033
23. 1948 (I) M.L.J. 270
24. AIR 1966 SC 216
25. (1891) 14 Mad 26
26. (2004) 13 SCC 480


THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO

C.R.P.No.4485 of 2012

ORDER:

This Revision Petition is filed under Article 227 of the
Constitution of India challenging the order dt.31-07-2012 in
O.S.No.324 of 2011 of the Principal District Judge, R.R. District at
L.B. Nagar, Hyderabad.
THE SUIT
2. The petitioners herein are plaintiffs in the above suit.
They filed the said suit against respondent Nos.1 to 143 for the
following reliefs:
(a) for a perpetual injunction restraining them from interfering with
the alleged peaceful possession and enjoyment of the petitioners over
the plaint schedule property and also not to alienate the same to any
third party; and
(b) to declare 107 registered sale deeds and agreements of sale cum-
GPAs mentioned therein which were registered in the office of the
Sub Registrar, Rajendranagar, Ranga Reddy District as null and void.
3. The subject matter of the suit is an extent of Ac.39.11
gts. in Sy. Nos.310, 311 and 312 of Budwel village, Rajendranagar
Mandal, Ranga Reddy District.
4. The petitioners valued the relief of perpetual injunction
notionally at Rs.18.00 lakhs and the relief of declaration to declare the
above documents as null and void also at Rs.18.00 lakhs and paid
court fee thereon.
THE APPLICATION UNDER SEC.11(2) OF RESPONDENT NO.S 1-7
5. Respondent Nos.1 to 7 herein who are defendant Nos.99,
100, 109 to 113 filed I.A.No.3373 of 2011 under Section 11 (2) of the
AP Court Fee and Suit Valuations Act, 1956 (for short the Act)
praying the Court below to decide the correctness of the valuation and
Court Fee paid by the petitioners insofar as the relief of declaration
that the 107 documents (mentioned in the plaint) are null and void is
concerned.
6. They alleged that the petitioners had grossly under
valued the suit schedule property showing that its entire value as only
Rs.20.00 lakhs; that although this Court had issued instructions on the
administrative side to subordinate District Courts to ensure that parties
filed market value certificate issued by the concerned Sub
Registrar/Registrar, to ensure that correct payment of Court Fee is
made by a litigant, and to prevent under valuing of suit claims, the
petitioners did not enclose the market value certificate of the
concerned Sub Registrar along with the plaint; in fact as per a market
value certificate obtained by the respondent Nos.1 to 7, the market
value of the suit schedule property is Rs.47,52,27,500/-, but the
petitioners have not paid court fee on this basis; and since the suit
claim is under valued, it amounts to playing fraud on the Court and
the plaint should be thrown out. They contended that although an
objection as to valuation of the reliefs was initially raised by the Court
below, subsequently the said objection was heard by the Court below
and not pressed by it, but later at the instance of the respondent Nos.1
to 7 who objected to the valuation, the Court permitted the suit to be
registered subject to objection. They contended that even as per the
averments in the plaint, the petitioners did not prove the paramount
title and ownership of late Haider Ali Mirza as regards the suit
schedule property even though the petitioners are claiming through
him, that they also did not produce any document in support of their
above plea and so the petitioners are bound to seek relief of
declaration of their title to the plaint schedule property under clauses
(a) or (b) of Section 24 of the Act. They contended that the relief of
declaration that the documents in favor of defendant Nos.9 to 144 are
illegal, null and void virtually amounts to seeking cancellation of the
said documents and the petitioners ought to have valued it under
Section 37 of the Act. It is further contended that by trick of pleading,
the petitioners had grossly under valued the suit and misled the Court
below to grant relief of declaration of title without valuing it under
Section 24 (a) and / or (b) of the Act and they cannot rely on Section
24 (d) of the Act. They therefore contended that the market value of
the property covered by each of the 107 documents questioned by the
petitioners should be taken into account for the purpose of calculation
of Court Fee and that since the said valuation is Rs.47,52,27,500/-, the
petitioners should be directed to pay Court Fee on the said valuation
under Section 24 (d) of the Act.
THE COUNTER AFFIDAVIT OF PETITIONERS
7. Counter affidavit was filed by the petitioners disputing
the above contentions and asserting that the suit has been valued
correctly and Court Fee was also correctly paid. The petitioners
denied that they played any fraud and contended that the respondent
Nos.1 to 7 had no locus standi to dispute the same. The petitioners
insisted that the valuation of the declaratory relief sought in the plaint
under Section 24 (d) of the Act is correct and valid. They contended
that they are successors to Haider Ali Mirza and are absolute owners
of the plaint schedule property and entitled to question the validity of
107 documents executed among the defendants and to have them
declared as null and void. They contended that they are not parties to
those 107 documents which they seek to be declared as null and void,
that they are not binding upon them, and that they need not show
separate value of each document since they have pleaded that the
documents are false and bogus. They contended that without filing
Written Statement, it is not open to the respondent Nos.1 to 7 to file
this application. They claim that defendant Nos.1 to 4 and 8 in their
Written Statement had admitted that the original pattedar is the father
of the petitioners and so the paramount title was admitted to be with
the petitioners. They contended that Section 24 (a) or (b) of the Act
are not attracted and that only Section 24 (d) is attracted. They
alleged that there is no need for the petitioners to seek cancellation of
the 107 documents or value them under Section 37 of the Act. They
contended that the respondent Nos.1 to 7 cannot contend that
valuation of the suit should be determined on the basis of
consideration mentioned in the sale deeds and the said I.A. be
dismissed.
THE ORDER OF THE TRIAL COURT
8. By order dt.31-07-2012, the Court below allowed the
said I.A. and directed the petitioners to value the suit insofar as the
relief of declaration declaring the 107 sale deeds as null and void and
not binding on the plaintiffs as per the valuation certificate Ex.A-1
dt.27-07-2011 issued by the Sub Registrar, Rajendranagar, Ranga
Reddy District filed by the respondent Nos.1 to 7 valuing the suit
schedule property at Rs.47,52,27,500/-, and pay the Court Fee thereon
before 14-08-2012 failing which it directed that the plaint would be
rejected.
9. After referring to the case laws cited by both sides, the
Court observed that there is no prayer for declaration of title sought by
the petitioners in the plaint and they had sought only injunction
simplicitor; that without seeking relief for declaration that the
petitioners are absolute owners and possessors of the suit schedule
property, the petitioners want to declare all the 107 documents
executed by some of the defendants as null and void and not binding
on them; the relief of injunction simplicitor, which is shown as the
main relief in the plaint, cannot be treated as a main relief when the
relief of declaration of whatever nature is added to it, and at best it
can be treated as a consequential/ancillary relief. It held that whenever
a declaration is sought for, it is incumbent on the part of the
petitioners to value the suit as per Section 24 (d) of the Act and for
that purpose, they should take the total value of the suit property into
consideration. It held that the petitioners had filed Form No.8
showing market value of the land as only Rs.20.00 lakhs and paid
Court Fee thereon while Ex.A-1 market value certificate issued by the
Sub Registrar on 27-07-2011 shows that the market value is more than
Rs.47.52 crores, and since the petitioners are seeking a declaration in
respect of that land and also seeking the documents to be declared as
null and void, they should value the suit as per the said market value
and cannot notionally fix the market value at Rs.18.00 lakhs and pay
Court Fee as they did.
THE REVISION BY PETITIONERS
10. Challenging the same, this Revision Petition is filed.
11. Heard Sri P.Venugopala Rao, learned counsel for the
petitioners, Sri Rakesh Sanghi, learned counsel for respondent Nos.1
to 7 and Sri Asadullah Sharif, learned counsel for respondent No.30.
The respondents 8-143 have been shown as not necessary parties to
the Revision.

THE CONTENTIONS OF COUNSEL FOR PETITIONERS
12. The learned counsel for the respective parties reiterated
the stand taken by them in the Court below. In addition, the counsel
for the petitioners contended that since the petitioners are not eo
nominee parties to the 107 documents in respect of which declaratory
relief was sought by them in the plaint, they are not bound to sue for a
declaration or for cancellation of each of them and such a prayer even
if it is there, needs to be ignored and Court Fee need not be paid
thereon. He relied upon Bijoy Gopala Mukerji Vs. Krishna
Mahishi Debi , Ramaswami Ayyangar Vs. Rangachariar and
Mohd. Ikramuddin Vs. Sangram Bosle and others . He further
contended that the view taken by the Court below that the petitioners
should pay Court Fee on the basis of market value of the suit schedule
property in respect of the relief of declaration sought by the
petitioners, is contrary to law, and that the Court below is not correct
in concluding that the petitioners are in fact seeking a declaration in
respect of the suit schedule land. He also disputed the finding of the
Court below that the relief of injunction sought for by the petitioners,
in the facts and circumstances of the case, is not a main relief but only
a consequential/ancillary relief.


CONTENTIONS OF COUNSEL FOR RESPONDENTS
13. The learned counsel for the respondent Nos.1 to 7
contended that the reasoning of the Court below is correct and that
there is no substance in the contentions raised by the counsel for the
petitioners. According to him, the purpose of payment of Court Fee is
for the benefit of the State and the petitioners cannot be allowed to
under value the suit by a trick of pleading and get away with it. He
contended that the petitioners are bound to seek declaration of their
title to the plaint schedule property and since they have not chosen to
do so, the plaint is liable to be rejected. He contended that the
petitioners ought to have valued the suit under Section 24 (a) and (b)
of the Act and not under Section 24 (d) of the Act and they should
have paid Court Fee on the market value of the property on the date of
filing of the suit. He contended that the relief of declaration claimed
by the petitioners in effect amounts to seeking relief of cancellation of
the documents/sale deeds and under Section 37 of the Act they should
pay Court Fee on the market value of the property comprised in the
sale deeds. He also contended that the Revision itself is not
maintainable. He relied upon Mohd. Shahbuddin and another Vs.
Ahmed Saifulah Hussain and others , Satyanarayana Vs. Om
Prakash and others , D.D.Nirmal Kumar and others Vs.
G.Sundera Shekhar and others , N. Kuru Murthy v.
M. Narasaiah , Koganti Sujani Vs. Vissamsetti Sankar Babu and
others , V.Rajeshwar Rao Vs. N.Yadagiri and others , State of AP
and others Vs. Narender Reddy and others , Chirala Rate Payers
and Civic Amenities Association Chirala, Prakasam District Vs.
Chirala Municipality , Kolachala Kutumba Shastri Vs.
Lakharaji Bala Tripura Sundaramma and others ,
M/s.Lakshminagar Housing Welfare Association, Hyderabad Vs.
Syed Sami and others , Satheedevi Vs. Prasanna and others and
Polamrasetti Manikyam and another Vs. Teegala Venkat
Ramayya and others .
14. I have noted the submissions of both sides.
POINT FOR CONSIDERATION
15. Therefore, the point for consideration is whether the
Court below was correct in holding that for the relief prayed by the
petitioners seeking declaration that 107 documents executed among
the defendants are null and void and not binding on them, the
valuation of the suit and the payment of Court Fee thereon by them is
not correct and that the petitioners are bound to pay court fee on the
market value of the plaint schedule property ?

THE CONSIDERATION BY THE COURT
16. From the plaint copy filed by petitioners, it is clear that
the petitioners contend that the plaint schedule property belongs to
their late father Hyder Ali Mirza, that they have inherited it from him,
and that they are in possession and enjoyment thereof. They alleged
that that the respondents have no right, title or interest therein and the
respondents have executed 107 registered sale deeds and agreement of
sale cum GPAs nominally and collusively even though they have
no valid title to the plaint schedule property. They have sought in the
plaint two reliefs : (a) for perpetual injunction restraining the
respondents nos.1 to 143 from interfering with the peaceful possession
and enjoyment of the petitioners over the plaint schedule property and
(b) to declare 107 registered sale deeds and agreement of sale cum -
General Power of Attorneys executed amongst the
defendants/respondents as null and void and not binding on them.
Re: Section 11(1) (a) :
17. Clause (a) of Sub-section (1) of Section 11 of the Act
mandates a Court before which a plaint is presented, to register it as a
suit only after deciding, on the allegations contained in the plaint and
the materials furnished by the plaintiff, the proper court fee payable
thereon. Clause (b) of sub-section (1) of Section 11 thereof makes the
decision of the Court under Clause (a) regarding the proper fee
payable subject to review, from time to time, as occasion requires.
18. In Kamaleshwar Kishore Singh v. Paras Nath Singh
and others , the Supreme Court held that, the decision on court fee
can normally only be based on the plaint as framed and not on the
plaint as it ought to have been framed, that, in certain circumstances
the Court can however come to the conclusion that the drafting of the
plaint was such that the plaintiff is attempting to evade payment of
correct court fee or that there is a provision of law requiring the
plaintiff to value the suit and pay the court fee in a manner other than
the one adopted by the plaintiff. It held that a court is enjoined to
begin with an assumption, for the purpose of determining the court
fees payable on the plaint, that the averments made therein by the
plaintiff are correct and that this did not preclude the court from
interfering if there is an arbitrary valuation of the suit property having
no basis at all for such valuation and made so as to evade payment of
court fee, or given for the purpose of conferring jurisdiction on some
court which it did not have, or depriving the court of jurisdiction
which it would otherwise have. It is the substance of the relief sought
for and not the form which will be determinative of the valuation and
payment of court fee. The defence taken in the written statement may
not be relevant for the purpose of deciding the payment of court fee
by the plaintiff. If the plaintiff is ultimately found to have omitted to
seek an essential relief which he ought to have prayed for, and without
which the relief sought for in the plaint as framed and filed cannot be
allowed to him, the plaintiff shall have to suffer the dismissal of the
suit.
19. In view of this settled principle of law, the court has to
proceed on the basis of the averments in the plaint. At this point of
time, when even a written statement is not filed by respondents 1-7, it
is not possible to say that by a trick of pleading the petitioners are
evading payment of court fee. So the contention of the respondents
that the petitioners should have also sought for declaration of title
specifically in the plaint and valued the same on the basis of the
market value of the property comprised in the 107 documents sought
to be declared as null and void, cannot be accepted because whether
such a relief also ought to have been prayed for by the petitioners,
without which the reliefs sought in the plaint by them as framed
cannot be granted, is a matter to be decided after trial and after
arguments are heard in the suit after the suit is registered.
Re: Sec.11(2) and Sec. 11 (3)
20. Sub-section (2) of Section 11 gives an option to any
defendant to plead that the subject matter of the suit has not been
properly valued or that the fee paid is not sufficient. It enjoins that all
questions arising on such pleas shall be heard and decided before the
hearing of the suit as contemplated by Order 18 C.P.C. It directs that
if the Court decided that the subject matter of the suit is not properly
valued or that the fee paid is not sufficient, the court shall fix a date
before which the subject matter of the suit shall be valued in
accordance with the courts decision and the deficit fee shall be paid.
It however directs that if within the time allowed, the subject matter of
the suit is not valued in accordance with the courts decision or if the
deficit fee is not paid, the plaint shall be rejected and the court shall
pass such order as it deems just regarding costs of the suit. This
decision of the trial court on the aspect of court fee can also be gone
into by the Court of Appeal either suo moto or on the application of
any party. [Section 11 (3) of the Act]
21. Sub-section (2) of Section 11 is the provision relied on
by the respondent nos.1 to 7 in I.A.No.3373 of 2011 seeking a
decision of the court below on the correctness of the valuation of the
suit and the court fee paid by the petitioners on the relief of
declaration that the 107 sale deeds/agreements of sale cum - GPAs
are null and void and not binding on the petitioners.
22. This provision was interpreted by a Division Bench of
this Court in Satyanarayana (5 supra). The Bench held that the
words in Section 11 (2) of the Act shall be heard and decided before
the hearing of the suit are only directory and not mandatory. The
Bench held that the purpose for which the provision is made is only to
see that proper court fee is collected from the plaintiff by the court
and the defendant is only given a right to point out regarding the
deficiency of the court fee paid and that should be limited and should
not be extended to enable him to protract the trial of the suit. It
further held that the defendant is not aggrieved by any such decision
and merely because he is given a right to contest the valuation, he
cannot be permitted to use the same as a weapon to protract the
litigation. It held that only in cases where the question of payment of
court fee affects the very pecuniary jurisdiction, it is necessary for the
court to investigate and examine and then decide it as a preliminary
issue, if it is satisfied that the jurisdictional question is involved and
that in such cases only, the defendant can move the higher courts on
the ground that the dispute regarding court fee is not tried as a
preliminary issue. In other disputes relating to payment of court fee, it
should be left to the discretion of the court to try the same as a
preliminary issue or try jointly along with other issues. The Bench
also considered the view in Mohd. Shahbuddin and another
(4 supra) and overruled the same. Therefore, the counsel for
respondent nos.1 to 7 is not entitled to place any reliance on the
decision in Mohd. Shahbuddin and another (4 supra).
23. In the present case, the plaint was presented in the
District Court at Ranga Reddy, the Court which has unlimited
pecuniary jurisdiction. So it cannot be said that to approach a court
with lesser pecuniary jurisdiction, the plaint was undervalued.
REVISION FILED BY PETITIONERS MAINTAINABLE
24. The Division Bench in Satyanarayana (5 supra)
followed the decision of Supreme Court in Shamsher Singh v.
Rajendra Prasad in holding that no Revision would lie against the
decision on the question of adequacy of court fee at the instance of a
defendant. Similar view has been taken in N. Kurumurthy (7 supra)
and Koganti Sujani (8 supra).
25. The counsel for respondents nos.1 to 7 sought to rely on
the judgment in Satyanarayana (5 supra), N. Kurumurthy (7 supra)
and Koganti Sujani (8 supra) to contend that the petitioners cannot
file a Revision challenging the order of the court below passed in
exercise of its power under Section 11 (2). This contention is not
tenable for the reason that the petitioners are not defendants in the suit
and they are plaintiffs and the impugned order affects their rights to
prosecute the suit. Therefore, in my considered opinion, the
petitioners are entitled to question the same under Article 227 of the
Constitution of India.
IS A PLAINTIFF, WHO IS NOT PARTY TO A SALE
DEED/CONVEYANCE/DEED AND WHO SEEKS TO QUESTION IT,
BOUND TO SEEK CANCELLATION OF IT ?

26. This issue was considered in Suhrid Singh v. Randhir
Singh while considering the provisions of the Court Fee Act (7 of
1870). The Supreme Court held that where the executant of a deed
wants it to be annulled, he has to seek cancellation of the deed but if a
non-executant seeks annulment of a deed, he has to seek a declaration
that the deed is invalid, or non est or illegal or that it is not binding on
him. The Court explained the difference between a prayer for
cancellation and declaration in regard to a deed of
transfer/conveyance by giving an illustration. In the said illustration if
A and B are two brothers and A executes a sale deed in favour of C
and later wants to avoid it, he has to sue for cancellation of the deed.
On the other hand, if B, who is not an executant of the deed, wants to
avoid it, he has to sue for a declaration that the deed executed by A is
invalid/void and non est/illegal and he is not bound by it. It observed
that in essence both may be suing to have the deed set aside or
declared as not binding, but the form is different and the court fee is
also different.
27. Admittedly, in the present case, the petitioners are not
parties to the 107 documents which they seek to be declared as null
and void and not binding on them. Therefore, in view of the above
decision, it cannot be said that they are bound to seek relief of
cancellation of the 107 documents and compute court fee on the
market value of the land comprised therein.
28. It is not disputed by both parties that only if the
petitioners were to seek relief of cancellation of the 107 documents
mentioned in the plaint, Section 37 of the Act would get attracted.
29. The said Section 37 directs that in a suit for cancellation
of a decree for money or other property having 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, moveable or immovable property, fee shall be
computed on the value of the subject matter of the suit. It enjoins that
such value shall be deemed to be, (a) if the whole decree or other
document is sought to be cancelled, the amount or value of the
property for which the decree was passed or other document was
executed, and (b) if part of the decree or other document is sought to
be cancelled, such part of the amount or of the value of the property.
Sub-section (2) is not relevant for our purpose.
30. Though a Full Bench of this Court in Lakshminagar
Housing Welfare Association (13 supra) took the view following the
Full Bench decision of the Madras High Court in Kolachala
Kutumba Sastri (12 supra) that the court fee should be computed, in
a suit for cancellation of a deed of conveyance, on the market value of
the property which is subject matter of the said deed, the said decision
was over-ruled in Polamarasetti Manikyam (15 supra) by the
Supreme Court. The Supreme Court followed its decision in Sathee
Devi (14 supra) while interpreting Section 37 of the Act and held that
the term value of property mentioned in the said provision does not
mean market value of the property and that court fee has to be
calculated on the sale consideration mentioned in the sale
deed/conveyance.
31. However, as stated above, since the petitioners are not
parties to the 107 documents which they seek to be declared as null
and void and not binding on them, they are not bound to seek the
relief of cancellation of these 107 documents and they are not bound
to pay court fee as computed under Section 37 of the Act. Therefore,
the above decisions cited by the counsel for respondent nos.1 to 7
cannot be applied to the present case.
IF A SALE DEED/CONVEYANCE/DEED IS NULL AND VOID,
SPECIFIC PRAYER TO SET IT ASIDE IS UNNECESSARY

32. If a sale deed, according to the plaintiff is null and void,
and non-est in the eye of law he need not seek to have it set aside.
This principle was laid down in Mahadeo Prasad Singh v. Ram
Lochan by the Supreme Court. It held:
32.Thus considered, the sale of the immovable property
ordered by the Munsif in execution of the decree of the Court of
Small Causes transferred to him, was wholly without jurisdiction
and a nullity.
33. Once we come to the conclusion that the sale in question
was totally null and void, the alternative contention of the
appellants with regard to the suit being barred by Section 47 of the
Code of Civil Procedure, does not survive.
34. This is not a case of an irregular or voidable sale which
continues to subsist so long as it is not set aside, but of a sale
which was entirely without jurisdiction. It was non est in the eye of
law. Such a nullity does not from its very nature, need setting
aside. (emphasis supplied)
33. A Full bench of this Court in Employees Association v.
Sri Chennakesava Swami temple , reiterated the principle that if a
sale is void, there is no necessity to seek cancellation of it, following
Mahadeo Prasad Singh (18 supra). In Employees Association
(20 supra), a the suit was filed for setting aside a sale conducted
pursuant to the sanction given by the Commissioner and the
Government under Section 74 of the A.P. Charitable & Hindu
Religious Institutions & Endowments Act, 1966 without challenging
the said orders. The Bench held that not only was a civil suit
maintainable to set aside the sale but it also held that the sale is void.
It observed:
In support of the contention that the plaintiffs could have even
filed a simple suit for recovery of possession of the suit land without
seeking cancellation of the sale deed which was null and void under
Section 74 of the Act, the learned counsel for the plaintiffs-respondents
have relied on the decision of the Privy Council in T.P. Petherpermal
Chetty v. R. Muniandi Servai and Ors. , , the relevant portion of
which is as follows:
"As to the point raised on the Indian Limitation Act, 1877,
their Lordships are of opinion that the conveyance of June
11, 1895, being an inoperative instrument, as, in effect, it
has been found to be, does not bar the plaintiff's right to
recover possession of his land, and that it is unnecessary
for him to have it set aside as a preliminary to his obtaining
the relief he claims." (emphasis supplied)
38. In a matter arising under the Court Fees Act, 1870, a learned
Judge of this Court held in Srimathi Mokhamatla Kondamma and
Anr. v. Srimathi Mokhamatla Venkatalakshmi Devi , that as in
the case of a reversioner, it is open to the junior widow to ignore the
adoption by a senior widow as a nullity and file a suit for possession
after the death of the senior widow. A junior widow, the learned Judge
observed, is entitled to ignore the adoption and file a suit for recovery
of her half share against the senior widow. If the junior widow is not
bound under substantive law to sue for a declaration that the adoption
is invalid, in order to obtain the relief of partition and separate
possession, it does not matter whether the alleged adopted son is
impleaded or not as a party or that an unnecessary relief for
declaration is sought for in the plaint. It is not necessary for the junior
widow to seek relief either for setting aside the adoption in order to
obtain the relief of partition and separate possession or for a
declaration that the alleged adoption is not true and valid. In a matter
arising under the Madras Court Fees Act, 1870, a Division Bench of
the Madras High Court held in Sahul Hamed Rowther v. K.C.P.
Mohideen Pichai that-
" Where a plaintiff alleged that a sale deed executed by him
in favour of the defendant was sham and nominal and prays
for a declaration to that effect and an injunction
restraining the defendant from interfering with the
plaintiff's possession it is not necessary for the plaintiff to
pray for cancellation of the deed."

From the above decisions it is clear that since the petitioners
herein are contending that the impugned documents are null and void,
they need even specifically seek a relief for their cancellation.

ON WHAT BASIS THE PETITIONERS SHOULD HAVE VALUED THE
RELIEF OF DECLARATION THAT THE 107 DOCUMENTS ARE NULL
AND VOID AND NOT BINDING ON THEM ?

34. In Bijoy Gopala Mukerji (1 supra), the Privy Council
was of the view that the relief for declaring that a sale deed is null and
void when prayed in a plaint by a party, who is not eo nominee a party
to it, is in fact an unnecessary relief. In that case, a reversioner sued
for a declaration that a lease granted by the widow of the last male
owner was not binding on him and for khas possession. It was
objected that the omission to plead setting aside of the lease by a suit
instituted within the time limited by Article 91 of the Limitation Act,
was fatal to the suit. The Privy Council held that an alienation by a
Hindu widow though not absolutely void, is prima facie voidable at
the election of the reversionary heir, who may affirm it, or treat it as a
nullity, without the intervention of any court. It held that he shows his
election to do the latter by commencing an action to recover
possession of the property and in such an event there is, in fact,
nothing for the court either to decide or cancel as a condition
precedent to the right of action of the reversionary heir. It held that
though the appellants before it prayed in the plaint that a declaration
that the lease was inoperative as against them be granted, as leading
up to their prayer for delivery to them of khas possession, it was not
necessary for them to do so. It observed that they might have merely
claimed possession, leaving it to the defendants to plead and (if they
could) prove the circumstances which they relied on for showing that
the Ijara or any derivative dealing with the property were not in fact
voidable, but were binding on the reversionary heirs. It observed :
6. in such cases, even if the plaint contains a prayer for
a declaration or cancellation, there is good reason for holding it to be
one for a purely incidental but unnecessary relief. ..
35. The above decision was approved by the Supreme Court
of India in Radha Rani v. Hanuman Prasad . The Supreme Court
held:

In this connection, it is necessary to consider whether the heirs
of the widow were necessary parties to a suit against the alienee either
for a declaration that the alienation is void beyond her lifetime or for
possession of the alienated property. In the case of an alienation by a
Hindu widow without legal necessity, the reversioners were not bound
to institute a declaratory suit during the lifetime of the widow. They
could wait until her death and then sue the alienee for possession of
the alienated property treating the alienation as a nullity without the
intervention of any court. See Bijoy Gopal Makherji v. Krishna
Mahishi Debi. To such a suit by the reversioners for possession of the
property after the death of the widow, the heirs of the widow were not
necessary parties. The reversioners could claim no relief against the
heirs of the widow and could effectively obtain the relief claimed
against the alienee in their absence. Instead of waiting until her death,
the next reversioner as representing all the reversioners of the last full
owner could institute a suit against the alienee for a declaration that
the alienation was without legal necessity and was void beyond her
lifetime.
36. The decision in Bijoy Gopala Mukerji (1 supra), was
followed by a Full Bench of the Madras High Court in Ramaswami
Ayyengar (2 supra). In that case, a suit had been filed for partition of
the estate of a joint Hindu family by the minor son of a Hindu father
through his mother and next friend before the Sub-ordinate Judge of
Kumbakonam. He contended that his father had engaged in reckless
speculation in land, in trade, and in litigation dissipating the cash
resources of the family and by selling and mortgaging family
properties. He further alleged that the said transactions are not
binding on the family, but he did not seek any prayer for setting aside
of the alienations of the family properties or for declarations that his
fathers other transactions are unenforceable against the estate. The
court below directed him to pay court fee by deeming him to be
constructively a party to a mortgage and other transactions entered
into by his father and directed him to pay court fee in accordance with
the ad valorem scale specified in Article 1 of Schedule I of the
Court Fee Act, 1870. The Full Bench held that in respect of
transactions entered into by his father in respect of which the plaintiff
is not bound under the substantive law by which he is governed to sue
for a declaration or cancellation, no court fee is payable. It held :
if a person not having authority to execute a deed, or having
such authority under certain circumstances which did not exist,
executes a deed, it is not necessary for persons who are not bound by
it, to sue to set it aside, for it cannot be used against them and that
they may treat it as non-existent and sue for their right as if it did not
exist.
It followed the decision in Unni v. Kunchi Amma .
37. The Supreme Court approved the decision in
Ramaswami Ayyengar (2 supra) in Nagappan v. Ammasai .
38. The above decisions of the Privy Council in Bijoy
Gopala Mukerji (2 supra) and Ramaswami Ayyengar (1 supra)
were followed by a single Judge of this Court in Mohd. Ikramuddin
(3 supra).
39. In Mohd. Ikramuddin (3 supra), the plaintiff had filed
a suit for declaration of title and recovery of possession of plaint
schedule properties. He also sought a declaration that a sale deed
executed by 2nd defendant in favour of 1st defendant is null and void.
Since it was a suit for declaration of title and recovery of possession,
he paid court fee under Section 24 (d) of the Act.
40. The said provision states :
24. Suits for declaration : --
(d) In other cases, whether the subject-matter of the
suit is capable of valuation or not, fee shall be computed on
the amount at which the relief sought is valued in the plaint
or at which such relief is valued by the Court whichever is
higher.
41. The trial court took an objection about the payment of
court fee and directed him to pay court fee under Section 37 of the Act
since he is asking for declaration that a registered sale deed was null
and void and not binding on him. This was questioned in Revision
before this Court. This Court held that since the plaintiff was not a
party to the registered sale deed, he need not ask for cancellation of it
and he is perfectly justified in asking for consequential relief of
declaration that the sale deed is not binding on him. It held that
merely because, to be on the safe side, the plaintiff sought for the
relief for declaration that the sale deed is null and void and paid the
court fee under Section 24 (d) of the Act, it did not mean that the suit
falls under Section 37 and not Section 24 (d). It further held that such
a prayer for declaration or cancellation could as well be ignored and
court fee need not be paid thereon. It held that according to the plaint,
when the plaintiff is not a party to the sale deed, he need not ask for
cancellation of the sale deed as the cancellation implies that the
person suing should be an actual or constructive party to a valid or
operative document. It held that a third party like the plaintiff is not
bound by a document of the description in question and is not obliged
to sue for cancellation. It set aside the order of the court below
directing the plaintiff to pay court fee under Section 37 of the Act but
not under Section 24 (d) and held that since according to the plaintiff
it is a sham transaction, he need not pray for its cancellation and even
if such a prayer is made, he need not pay court fee.
42. In the present case also, the petitioners contend that the
title to the plaint schedule property belongs to them and they are the
heirs to their father late Hyder Ali Mirza and the respondents cannot
deal with the plaint schedule properties without any right, title or
interest therein. Since they are not parties to the 107 sale
deeds/agreements of sale cum GPAs mentioned in the plaint, and
they contend that they are sham, invalid, null and void and collusive
documents and have sought a declaration that they are null and void
and not binding on them, they not only need not seek relief that these
documents be cancelled, but they are also not bound to pay any court
fee on this relief of declaration in view of the decisions in Bijoy
Gopala Mukerji (2 supra), Radha Rani ( 24 supra), Ramaswami
Ayyengar (1 supra), Nagappan ( 26 supra) and Mohd. Ikramuddin
(3 supra).
43. Therefore conclusion of the court below that the
petitioners are bound to pay court fee for the said relief on the market
value of the plaint schedule properties as indicated in Ex.A.1 market
value certificate dt.27.07.2011, is unsustainable.
44. The court below also erred in observing that the relief of
injunction simplicitor cannot be treated as main relief since the relief
of declaration is also prayed for by the petitioners in the plaint. In the
facts and circumstances of the present case, the relief of injunction
sought by petitioners has to be held to be a main relief and cannot be
said to be an ancillary relief.
45. A plaintiff in possession and claiming title can
undoubtedly ask for relief of injunction as a primary relief and if he
does not prove either his title or possession, he may be denied such
relief, but that is a different matter.
46. The reliance on Section 24 by the court below in this
regard also cannot be sustained since the provisions therein would be
attracted only if the petitioners have sought a declaration of their title
and sought relief of possession/injunction or if they sought for a
declaration that documents to which they are parties are null and void
or a declaration of any nature other than one sought for in the plaint.
The said provision would have no application in a situation where the
petitioners are not parties to the documents which they wish to be
declared as null and void and not binding on them.
47. The other decisions in D.D. Nirmal Kumar (6 supra),
V. Rajeswara Rao (9 supra), V.Narender Reddy (10 supra),
Chirala Rate Payers and Civic Amenities Association (11 supra),
cited by counsel for respondents, have no application and turn on the
peculiar facts of those cases.
48. For the above reasons, I am of the opinion that the
impugned order cannot be sustained. It is accordingly set aside and
the C.R.P. is allowed. No costs.
49. As a sequel, the miscellaneous petitions pending, if any,
shall stands closed.
__________________________________
JUSTICE M.S.RAMACHANDRA RAO

Date: 27-10-2015

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Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

cancellation of the sale deeds = Under the Registration Act, 1908 and the Rules framed thereunder, which provide that registration/cancellation of document is only with reference to the executant and the claimant under a document, which is already registered. Petitioner, being a third party, is, therefore, not entitled to approach the registering authority and seek cancellation of the documents executed by third party in favour of any other party. Petitioner’s reliance upon Rule 26 of the Rules framed under the Registration Act is also misconceived inasmuch as Rule 26(k)(i) of the Rules specifically refer to the duty of the registering authority to ensure that the deed of cancellation is executed by all the executants and the claimants, who are parties to previously registered document and only on mutual consent a deed of cancellation can be registered. Since petitioner is not a party to the impugned sale transactions between two different individuals, he is not entitled to seek cancellation thereof and in any case, the petitioner does not satisfy even the requirement of Rule 26, referred to above.