1. The petitioner before this Court has filed the present petition under Article 227 of the Constitution of India being aggrieved by the order dated 10.02.2024 passed by the First Civil Judge, Class - II, District - Shajapur in RCS-A-152/2019, whereby the application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 has been rejected. This petition is also against the order dated 19.03.2024, whereby the application for amendment of the order dated 10.02.2024 has been partly allowed.

2. Facts of the case reveal that the respondent No.1 / plaintiff has filed a civil suit seeking declaration of title, recovery of possession and declaration of sale deed dated 23.11.2012 as null and void in respect of land bearing Survey No.19/2 area 0.008 hectare (1/2 share) situated at Village - Magaria, District - Shajapur.

3. Respondent No.2 is the purchaser of the suit property allegedly solde by late Shri Brijballabh Dubey on behalf of respondent No.1 on 23.11.2012 through a registered sale deed. Respondent No.1 executed a registered power of attorney in favour of her brother late Brijballabh Dubey on 05.12.1989 with respect to the subject land. It is alleged that the sale deed was unauthorized and at the time of sale, late Brijballabh Dubey was not the power of attorney holder.

4. The petitioner and other defendants filed applications under Order VII Rule 11 of the CPC seeking rejection of the suit on the ground that the suit was improperly valued and the Ad Valorem court fee was payable as per the market value of the subject land.

5. Vide order dated 10.02.2024, the applications filed by the defendants came to rejected by the trial Court. The defendants also filed an application for rectification of typographical error in the order dated 10.02.2024 and reconsideration of the applications under Order VII Rule 11 of the CPC. The plaintiff filed a reply to the aforesaid application and vide order dated 19.03.2024, the application came came to be allowed in part. Hence, the present miscellaneous petition is before this Court.

6. Learned counsel for the petitioner submits that the plaint itself states that that there was a registered power of attorney in favour of late Brijballabh Dubey and the plaint nowhere reveal that the said power of attorney was cancelled through a duly registered deed of revocation. Learned counsel submits that it is a trite law that cancellation of a registered instrument can only be affected either by way of declaration by a Civil Court or by registering authority to whom the powers of cancellation have been vested by virtue of appropriate amendment in the Registration Act. In absence of such pleadings, the executant of the power of attorney clearly appears to be a party to the sale transaction, thus, must Ad Valorem court fee as per the market value.

7. To prop up the aforesaid submissions, reliance has been placed upon a judgment delivered in the case of Meera v/s Heera Bai reported in 2004 SCC OnLine MP 335 , Ambika Prasad v/s Ram Shiromani reported in 2010 SCC OnLine MP 452 & Kamalkishore v/s Jagannath Prasad reported in 2005 SCC OnLine MP 13 and a prayer has been made that the impugned orders be set aside.

8. I have heard learned counsel for the petitioner.

9. Perusal of the record reveals that plaintiff has filed the suit for a declaration of title, recovery of possession, and for declaring the sale deed null and void. The plaintiff has pleaded that the deceased - Brijvallabh Dubey executed the sale deed of the disputed land on 24.01.2014, representing himself as the plaintiff's power of attorney holder. The plaintiff claims that no power of attorney was valid in her name on the date of execution of the sale deed in 2014. From the plaint, it is evident that the plaintiff seeks to have the sale deed executed by the power of attorney holder declared null and void. Thus, based on the plaintiff's pleadings, she is not a party to the sale deed. Before the trial Court, the defendants also took a plea that the land in question is not agricultural land but land converted for a different purpose. The learned trial Court has held that while deciding an application under Order 7 Rule 11 of the CPC, only the averments in the plaint should be considered. On such premises, the applications have been rejected.

10. So far as the order dated 19.03.2024 is concerned, the same was allowed only to the extent of typographical error, however, in respect of the remaining relief, the trial Court has rejected the application.

11. I have gone through the orders passed by the trial Court. The plea as taken by the petitioner / defendants is a matter of evidence and cannot be decided at this stage of deciding an application under Order VII Rule 11 of the CPC. Hence, the finding of fact arrived at by the trial Court is just and proper and does not suffer any patent illegality or perversity. No case for interference is made out.

12. In view of the above, Miscellaneous Petition stands dismissed.