Dinesh Chandra Somani, J.Heard learned counsel for the petitioners.

2. The instant petition has been filed by the plaintiff petitioners under Article 227 of the Contitution of India assailing the order dated 11.8.2016 passed by District Judge, Tonk (hereinafter referred to as the learned trial Court) in Civil Suit titled as Laxmi Narain & Anr. v. Ram Swaroop & Ors., whereby the learned trial Court has directed the plaintiff-petitioners to pay ad-valorem court fee on sale consideration recited in the sale deed dated 26.4.2014.

3. The material facts necessary for disposal of this petition are that the plaintiff-petitioners filed a civil suit in the Court of District Judge, Tonk to declare the sale deed dated 26.4.2014 executed by the defendant-respondents No.1 to 3 in favour of defendant-respondent No.4, to be null and void and for permanent injunction. After hearing learned counsel for the plaintiff petitioners, the learned trial Court passed the impugned order dated 11.8.2016. Being aggrieved with the said order, the plaintiff-petitioners have approached this Court by way of this petition.

4. Learned counsel for the petitioners submits that the learned trial Court has completely overlooked the provisions of Section 7 of Rajasthan Court Fees & Suits Valuation Act, 1961 (hereinafter referred to as the) and illegally held that the plaintiffs have to pay the ad-valorem court fees on the sale consideration recited in the sale deed. Learned counsel also submits that the learned trial Court has misconstrued the provisions of Section 38 of the Act, which is not applicable on the relief claimed by the plaintiffs in the suit. Learned counsel further submits that admittedly the plaintiff-petitioners are not party to the sale deed, therefore, they are not liable to pay ad-valorem court fee on the sale consideration recited in the sale deed. In support of his submissions, learned counsel placed reliance on the judgment of Honble Apex Court in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors. reported in 2010 IV AD (S.C.) 374.

5. From perusal of the plaint, it reveals that the plaintiff petitioners have filed the suit against the defendant-respondents for the relief of declaration to the effect that the sale deed executed by the defendants No.1 to 3 in favour of defendant No.4 on 26.4.2014 with regard to the agricultural land in dispute, is null and void and for permanent injunction. It emerges that the plaintiff-petitioners are not party to the alleged sale deed and the property sold through the sale deed is agricultural land. Relevant provisions of Sections 7, 24 & 38 of theare as under :

"7. Determination of market value:- (1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.

(2) The market value of land in suits falling under clauses (a) and (b) of section 24 or under clauses (a) of section 26 or under section 28 or under section 29 or under sub-section (1) or sub-section (3) of section 35 or under section 36 or under section 44 shall be deemed to be--

(a) where rent in respect of such land has been settled, twenty-five times the rent rate sanctioned during the last settlement, and

(b) where rent in respect of such land has not been settled, twenty-five times the rent rate sanctioned during the last settlement for similar land in the neighbourhood.

24. Suits for declaration:- In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under section 25,--

(a) where the prayer is for a declaration and for possession of 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) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property, subject to a minimum fee of twenty rupees;

(c) where the prayer relates to the plaintiffs exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint subject to a minimum fee of forty rupees;

(d) where the prayer is for a declaration with reference to any property and no consequential relief is prayed for, fee shall be computed on the market value of the property, subject to a minimum fee of twenty rupees;

(e) 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, subject to a minimum fee of twenty-five rupees.

38. Suits for cancellation of decree, 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 value of 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) If 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 to the plaintiffs share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree, whichever is less."

6. In Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors (supra), Honble Apex Court has held that :

"6. 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 nonest, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B -- two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the 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 nonest/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an advalorem court fee as provided under Section 7 (iv) (c) of the. Section 7 (iv) (c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7."

7. In Kamleshar Kumar Singh v. Paras Nath Singh & Ors reported in AIR 2002 SC 233 , the Honble Apex Court has held that it is well settled that the court fee has to be paid on the plaint as framed and not on the plaint as it ought to have been framed unless by astuteness employed in drafting the plaint the plaintiff has attempted at evading payment of court fee or unless there be 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. The Court shall begin with an assumption, for the purpose of determining the court fees payable on plaint, that the averments made therein by the plaintiffs are correct. The defence taken in the written statement may not be relevant for the purpose of deciding the payment of court fee by the plaintiff.

8. According to the plaint filed by the petitioners, the disputed property is agricultural land and the petitioners are not the executant of the deed, which they want to be annulled, therefore, it is not necessary for them to seek cancellation of the deed and it is sufficient for them to seek a declaration that the deed is invalid or non-est or illegal or that it is not binding on them. Section 7 of theprovides for determination of market value of the property in dispute.

9. According to Clause (a) of Sub-section (2) of Section 7 of the Act, where rent in respect of such land has been settled, court fee shall be payable twenty-five times of the rent rate sanctioned during the last settlement. According to the plaint averments, the property in dispute is agricultural land and rent in respect of such land is Rs. 28.72/- and it appears that the plaintiff petitioners have assessed the market value of their share in the property by multiplying the amount of rent with twenty-five times, which is in conformity with the provisions of the. To us, learned trial Court has wrongly directed the plaintiff-petitioners to pay the ad-volerm court fees on the sale consideration recited in the sale deed, as provided under Section 38 of the.

10. As discussed above, if the impugned order passed by the learned trial Court is allowed to continue, it will be a manifest failure of justice.

11. Having regard to the submissions made by learned counsel for the petitioners and the material made available on record as well as the reasons recorded by the learned trial Court in support of the impugned order and on consideration of the relevant legal provision and the well settled legal position, I find it a fit case in which this Court must invoke its extraordinary jurisdiction of superintendence conferred upon it under Article 227 of the Contitution of India to quash and set aside the impugned order.

12. In view of above, the petition is allowed and the impugned order dated 11.8.2016 passed by the learned trial Court is quashed and set aside and the learned trial Court is directed to calculate the court fee in accordance with Section 7 (2) (a) of the Act, as indicated above, with reference to the plaint averments. No order as to costs.

13. In view of above, the stay application also stands disposed of.