1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATEJURISDICTION WRIT PETITION NO. 1573 OF 2011 Vithal Balwant Pasalkar & Others ...Petitioners Versus Sou. Madhuri S. Padekar & Others ...Respondents Mr.Rahul Kadam for the Petitioners Mr.Jaydeep Deo for the Respondents CORAM:- R.Y.GANOO, J. DATED:- 21st SEPTEMBER, 2011. P.C. 1. Heard learned Advocates for the parties. Respondent No.1 filed suit in the Court of Civil Judge, Junior Division, at Pune being Regular Civil Suit No.1572 of 2007 praying therein that the petitioner should not interfere with her possession in regard to the land mentioned in the suit. In the process of hearing of the suit, the petitioners herein filed application at Exhibit 69 praying that the respondent no.1 has undervalued the suit and therefore the plaint should be rejected. That 2 application was decided by the learned 18th Joint Civil Judge, Junior Division, Pune. The learned Civil Judge by his Order dated 12.10.2010 rejected the said application. Against this order, the petitioner filed review application below Exhibit 77 and that review has already been dismissed. 2. I have perused both the orders. Learned Advocate for the respondent no.1 upon instructions stated that in the present suit the respondent no.1 does not wish to seek a declaration that the respondent no.1 is owner of the property and respondent no.1 wishes to seek relief of injunction as set out in prayer clause (a) . 3. With the aforesaid clarification I have perused the plaint. Nodoubt, in the plaint it is stated that the respondent no.1 is the owner of the property and thereafter certain averments are made so as to see that the order of injunction is sought as and by way of principal issue. On reading the entire plaint, it is clear that the respondent no.1 does not wish to seek a declaration from the court that she is the owner of the property. If that would have been so, surely she would have applied for appropriate order. There is no such prayer for seeking a 3 declaration that the respondent no.1 is the owner of the property. The averments in the plaint whereby respondent no.1 has pleaded that she is the owner of the property are made in order to substantiate her case that she is the owner of the property and that she is entitled to peaceful enjoyment of the said property. Learned Advocate Mr. Kadam appearing on behalf of the petitioner had relied upon the judgment in the case of the Corporation of the City of Bangalore vs. M. Papaiah and Another reported in AIR 1989 SC 1809. He tried to submit on the basis of this judgment that the respondent no.1 ought to have valued the property in question. In my view, this judgment would not be applicable to the facts of this case. Law is well settled that the person who is in possession of the property can maintain the suit so as to protect his possession from those persons who are trying to dispute his possession. In this case, the respondent no.1 claims that he is the owner of the property and on that ground he is trying to justify that he is entitled to an order of injunction so as to protect his possession. In my view, the argument advanced by the petitioner is misconceived. 4. If a suit is filed merely to protect possession as has been done in the 4 present case, there is no need to value the suit as suggested by the petitioner. The valuation done by the respondent no.1 is proper. The learned trial Judge has rightly rejected the application. Petition is therefore required to be dismissed. 5. Learned Advocate for the respondent no.1 submitted that an issue has been framed by the learned 18th Joint Civil Judge, Junior Division, Pune thereby casting the burden on the respondent no.1 to show that she is the owner of the property. It appears that this issue has been framed by the learned Judge without affording formal hearing to both the sides. In any case, if the respondent no.1 is of the view that this issue no.1 is framed, it is open for the respondent no.1 to make application for re-casting of the issues framed on 21.6.2010. 6. For the reasons mentioned aforesaid, I am inclined to observe that no interference is required in the impugned order. Petition is required to be dismissed. Hence the following order is passed ORDER i) Petition is dismissed. ii) Liberty is granted to respondent no.1 to apply for re-casting of 5 issues. Such an application shall be decided on merits. ii) In the aforesaid facts and circumstances of the case, petitioner to pay sum of Rs.500 (Rupees Five Hundred Only) as and by way of costs, to the Bombay High Court Legal Aid Committee. (R.Y.GANOO, J.)