(1) JUDGMENT REPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 5947 OF 2009 1. Raosaheb s/o. Ramrao Shinde, Age : 50 years, Occupation : Agriculture, R/o. Shivrai, Post : Banshendra, Taluka : Kannad, District : Aurangabad. 2. Ushabai w/o. Raosaheb Shinde, Age : 45 years, Occupation : Agriculture, .. Petitioners R/o. Shivrai, (Original Post : Banshendra, defendant Taluka : Kannad, nos.1 & 2) District : Aurangabad. versus 1. Sahebrao s/o. Ramrao Shinde, Age : 55 years, Occupation : Agriculture, R/o. Shivrai, Post : Banshendra, Taluka : Kannad, District : Aurangabad. 2. Paras s/o. Kailashchand Patodi, Age : 35 years, Occupation : Agriculture, .. Respondents R/o. Bahirgaon, (Original plaintiff Taluka : Kannad, & defendant no.3) District : Aurangabad. (2) .......................... Mr. U.N. Shete, Advocate, for the petitioners. Mr. V.R. Dhorde, Advocate, holding for Mr. P.S. Dighe, Advocate, for respondent no.1. Respondent no.2 served (Absent). .......................... CORAM : B.R. GAVAI, J. DATE : 19TH NOVEMBER 2009. ORAL JUDGMENT : 1. By way of present petition, the petitioner seeks an exception to the order dated 7th August 2009, passed by the learned Civil Judge (Junior Division), Kannad, below Exhibit 91 in Regular Civil Suit No. 150/2006, thereby rejecting the application filed by the petitioners (original defendants)for directing enquiry into the valuation of the suit property under Section 8 and 9 of the Bombay Court Fees Act, 1959 (For short, hereinafter referred to as "the said Act"), and for rejection of plaint under Order VII Rule 11(b) of the Code of Civil Procedure, 1908, on the ground that the suit was not accompanied by requisite court fees. 2. The plaintiff has filed a suit for possession on the basis of title. The suit is resisted by the present petitioners. After the issues were (3) framed, an application came to be filed by the present petitioners, contending therein that the suit ought to be valued under Section 6(iv)(d) of the said Act and the court fees on the basis of market value of the land, in question, ought to have been paid by the petitioners along with the plaint. It was, therefore, prayed for directing an enquiry and also for rejection of plaint. The application was resisted by the respondent plaintiff. The said application is rejected. Hence, the present petition. 3. Mr. U.N. Shete, learned Counsel appearing for the petitioners, submits that since from the perusal of the plaint, it can be seen that the plaintiff is claiming a declaration of ownership, the suit ought to have been valued under Section 6(iv)(d) of the said Act. He submits that since the plaintiff has not paid the requisite court fees, the plaint was required to be rejected in view of provisions of Order VII Rule 11(b) of the Code of Civil Procedure. He relies on the judgment of the Apex Court, in the case of Corporation of the City of Bangalore Vs. M. Papaiah and another (AIR 1989 SC 1809), and the judgment of learned Single Judge of this court, in the cases of (i) Pushparaj Surajprasad Modh Vs. Sayyad Altaf Sayyad Wazir and others (2000(4) Mh.L.J. 492), (ii) Samrat Furniture, Nagpur and others Vs. Bhaurao Natthuji Mankar (2001(3) Mh.L.J. 456), and (iii) Mahesh s/o. Apparao Suryawanshi Vs. Tulsabai w/o. Bhagwanrao Suryawanshi & others (2005(3) ALL M.R. 804). 4. Mr. V.R. Dhorde, learned Counsel appearing for respondent no.1, on the contrary, submits that the learned Judge of the trial court has rightly held that the suit was required to valued under Section 6(v) of the (4) said Act. He submits that since the suit was for possession of the agricultural land, for which an assessment was made by the Government, the plaintiff was required to pay sum equal to 80 times of the survey assessment and, as such, the learned Judge of the trial court has rightly rejected the application. He relies on the judgment of the learned Single Judge of this court, in the case of Madhavrao Sitaram Kohali and others Vs. The State of Maharashtra (AIR 1978 Bombay 344). 5. The relevant portion of Section 6(iv)(d) of the said Act reads thus : " The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows : (iv)(d) for ownership etc. of immovable property, etc. : In suits for declaration in respect of ownership, or nature of tenancy, title, tenure, right, lease, freedom or exemption from, or non-liability to, attachment with or without sale or other attributes, of immoveable property, such as a declaration that certain land is personal property of the Ruler of any former Indian State or public trust property or property of any class or community one- fourth of ad valorem fee leviable for a suit for possession on the basis of title of the subject-matter, subject to a minimum fee of one hundred rupees. Provided that ....................... Provided that ....................... Provided also that, in any of the cases falling (5) under this clause except its first proviso, when in addition any consequential relief other than possession is sought the amount of fee shall be one-half of ad valorem fee and when the consequential reliefs also sought include a relief for possession the amount of fee shall be the full ad valorem fee. " 6. It would also be necessary to refer the relevant portion of Section 6(v) of the said Act, which reads thus : " The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows : (v) for possession of lands, houses and gardens : In suits for the possession of land, houses and gardens according to the value of the subject-matter, and such value shall be deemed to be, where the subject- matter is a house or garden according to the market value of the house or garden and where the subject-matter is land, and - (a) ............................................................................ .... (b) where the land is held on a permanent settlement, or on a settlement for any period exceeding thirty years, and pays the full assessment to Government a sum equal to eighty times the survey assessment, and (c) ..........................................................................." (6) 7. It can thus be seen that when in a suit basically for declaration in respect of ownership, any consequential relief including that of possession is sought, the said suit would be governed by Section 6(iv)(d) of the said Act. However, it can be seen that when a suit is for possession of land, where the land is held on a permanent settlement, or on a settlement for any period exceeding thirty years, and pays the full assessment to Government, it shall be governed by Section 6(v) of the said Act. 8. In so far as contention of the petitioners, that the suit also seeks a relief for declaration of ownership is concerned, it is to be seen that the plaint has to be read in entirety. A particular part of the plaint cannot be read in isolation without context to the other part of the plaint. From the perusal of the plaint, it can be seen that the plaintiff has specifically averred that his maternal grandmother had purchased the land, in question, in the name of the plaintiff, as the plaintiff's guardian, on 11th April 1966, as the plaintiff was minor at the relevant time. He has further averred that the suit land was given in gift to the plaintiff on 5th May 1966. The original plaintiff has, therefore, claimed possession of the land on the basis of title which, according to him, is derived from the aforesaid sale deed and the gift in his favour by maternal grandmother Shevantabai. It is the contention of the plaintiff, in the plaint, that the plaintiff was in possession of the said land. However, the defendant nos.1 and 2 have illegally managed to make entries in the 7/12 extracts in their names. It is his contention that he has already challenged the said mutation entries. It is further case of the plaintiff, that though he was in possession of the suit land, the plaintiff has been illegally dispossessed by (7) the defendants and that the defendants have taken illegal possession of the land in question. It can thus be seen from the averments made in the plaint, that the basic claim of the plaintiff is for possession on the basis of title which, according to him, is derived on the basis of the sale deed and the gift. 9. A similar question arose before the learned Single Judge of this court, in the case of Madhavrao Sitaram Kohali and others (supra). In the said case, the plaintiffs therein had filed a suit for possession on the basis of their claim of ownership of the tank in question. It was their contention that the land, in question, was owned by the ancestors of the plaintiff and that their names were recorded in the revenue record for ages together. In the said suit, an objection was taken that since the suit was for declaration of ownership with consequential relief, it fell under third proviso to Section 6(iv)(d) of the said Act. The trial court accepted the objection. Being aggrieved thereby, the plaintiff went in revision. This court found that the learned trial Judge has erred in holding that the suit was for a purpose other than a suit for possession. In paragraph 19 of the judgment, this court has observed thus : " Even on merits, I am inclined to think that the learned trial Judge was in error in coming to the conclusion that the principal relief in this case was for declaration and that the relief for possession was merely a consequential relief. In fact, the principal relief which the plaintiffs want is the relief for possession. If the relief for possession was granted to them, the relief of declaration becomes unnecessary and redundant. Where a person sues for possession on the basis of his existing title, it is true that he has to show and establish (8) that he had title to the property in question. But it is not necessary for him to obtain a declaration in regard to that title because the foundation of relief of possession is his title to the property. If he is entitled to relief of possession which is incidental to his title, then it becomes unnecessary for him to seek any relief of declaration. This question has also, in my opinion, been settled by the Division Bench judgment of our High Court in Waman Vinayak Paranjape Vs. Narayan Hari, reported in 48 Bom. LR 193 : (AIR 1946 Bom. 363). " This court has further observed, in paragraph 22 of the judgment, thus : " This Court held that the claim for declaration in question cannot be treated as a claim really necessitated by the nature of the suit, the real or principal remedy sought by the plaintiff being a decree for possession. " I find that the facts in the present case are almost identical with the facts in the said case. 10. In so far as the judgment of the Apex Court, in the case of Corporation of the City of Bangalore Vs. M. Papaiah and another (supra), relied upon by Mr. U.N. Shete, learned Counsel appearing for the petitioners, is concerned, the main question therein was as to whether the suit can be dismissed on the ground that there was no relief of declaration of title specifically mentioned in the plaint. The Apex Court in the said judgment has observed thus : (9) " It is well established that for deciding the nature of a suit, the entire plaint has to be read and not merely the relief portion, and the plaint in the present case does not leave any manner of doubt that the suit has been filed for establishing the title of the plaintiffs and on that basis getting an injunction against the appellant Corporation. " It can thus be clearly seen that the question which arises for consideration, in the present case, was not for consideration before the Apex Court. In the said case, the Apex Court by observing that the plaint has to be read in entirety, has held that merely because a relief for declaration of title is not specifically mentioned in relief portion of the plaint, that cannot be a ground for dismissal of the suit. 11. In so far as the judgment of the learned Single Judge of this court, in the case of Mahesh s/o. Apparao Suryawanshi (supra), relied upon by the learned Counsel for the petitioners, is concerned, I find that the said judgment would not be of any assistance to the case of the present petitioners. In the facts of the said case, the court found that the agricultural land, possession of which was sought by the plaintiff therein, was sold by the uncle of the plaintiff in the year 1938 by a registered sale deed. In the said case, it was found that unless an issue of ownership of the land was decided and a question regarding validity of the sale deed executed in the year 1938 is determined, the suit of the plaintiff therein cannot be decided. It can, thus, be clearly seen that the facts in the said case were totally different than the facts in the present case. 12. In so far as the reliance placed by Mr. U.N. Shete, learned (10) Counsel appearing for the petitioners, on the judgment of the learned Single Judge of this court, in the case of Samrat Furniture, Nagpur and others (supra), is concerned, in the said case also, the suit property was not an agricultural land assessable to the land revenue but was a property situated in the city of Nagpur. As such, the said judgment would also be of no assistance to the case of the petitioners. 13. In so far as the reliance placed by the learned Counsel for the petitioners, on the judgment of the learned Single Judge of this court, in the case of Pushparaj Surajprasad Modh (supra), is concerned, I find that the said judgment instead of supporting the case of the petitioners, it rather supports the case of the respondent plaintiff, as could be seen from paragraph 8 of the said judgment. The learned Single Judge of this court, in paragraph 8 of the said judgment, has observed thus : " In my view, clause (iv) and clause (v) would operate and apply to totally different situations. The purpose of clause (iv) is only to levy Court fees in relation to the suit for declaration and consequential relief on the basis of such declaration. On the other hand, clause (v) would operate only in respect of the suits which are based on title and simpliciter for the relief of possession. The purpose of both the clauses are totally different and clause (v) cannot be made applicable to the present case. " 14. In that view of the matter, I do not find that any error has been committed by the learned Judge of the trial court in rejecting the application filed by the present petitioners. The petition is without merit. (11) 15. Hence, the petition is dismissed. ( B.R. GAVAI ) JUDGE ......................... bgp/wp5947