-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8201 OF 2007 WRIT PETITION NO.8201 OF 2007 WRIT PETITION NO.8201 OF 2007 Shri Ashok Pandurang Jadhav, .. Petitioner. Vs Balkrushna Pandurang Jadhav & ors .. Respondents. Mr Amit Borkar, for the petitioner. Mr Rahul P Walvekar, for respondent nos.6 to 9. CORAM : D.B.Bhosale,J. CORAM : D.B.Bhosale,J. CORAM : D.B.Bhosale,J. DATE : 27.03.08. DATE : 27.03.08. DATE : 27.03.08. PC: PC: PC: 1. Rule. Mr. Walvekar, learned counsel, waives service for respondent nos 6 to 9. By consent, rule is made returnable forthwith and heard finally. I have heard learned counsel for the petitioner and learned counsel for respondent nos 6 to 9. None for other respondents, though served. 2. This writ petition by the plaintiff challenges an order dated 17.8.2007 passed by the trial Court disposing of an application at Exhibit-50 in Regular Civil Suit No.39 of 2007 filed by respondents-defendant nos 6 to 9 under section 8 of the Bombay Court Fees Act, 1959. By the impugned order, the plaintiff is directed to make proper valuation of the suit by taking into account the sale prices of Rs.6,70,160/- and Rs.7,73,520/- mentioned in the sale deeds registered at serial nos.7125 and 7126 respectively and to pay proper court fees thereon. 3. The petitioner has instituted the suit for partition and separate possession of 1/6th share in the suit property -2- contending that he is already in possession of a part of the suit property and, therefore, has prayed in the suit that the part of the property, which is in his possession, be allotted to his share. In the suit, the petitioner has also prayed for declaration that the sale deed dated 24.7.1991 executed by defendant nos 1,2 and 4 in favour of defendant nos 6 to 9 is not binding on the petitioner’s share. However, the learned counsel for the petitioner did not press this prayer and a statement to that effect was also made before the trial Court which the trial Court has recorded in paragraph 13 of the impugned order. Mr Borkar, learned counsel for the petitioner, once again prayed in the instant proceedings seeking permission to delete the said prayer. This prayer has not been opposed by the respondents. Hence, the trial Court is directed to pass a formal order deleting prayer (c) in the plaint and allow the petitioner to carry out necessary amendment. The learned counsel for the respondents has also agreed for considering the challenge to the impugned order treating the prayer (c) in the suit as deleted. 4. Mr Borkar, learned counsel for the petitioner, vehemently submitted that what is necessary for the court to consider for determining an issue of valuation of a suit is the averments/pleadings in the plaint and not the defence taken by the defendants. He invited my attention to paragraph 13 of the impugned order and submitted that an -3- issue of ownership of the plaintiff is not the issue in the suit. The learned Judge has unnecessarily held that unless the issue of ownership is adjudicated upon, the suit for partition cannot be decided. He submitted, the learned Judge has reached this conclusion on the basis of the averments made in the application filed by defendant nos 6 to 9 wherein they have stated that Sunil Jadhav had executed the sale deed in favour of defendant nos 6 to 9 on the basis of the power of attorney executed by the petitioner and defendant nos 1 to 5. He then submitted that the suit filed by the petitioner is a suit for partition and that the plaintiff is in possession of the part of the suit property and, therefore, has not sought possession thereof in the suit. On the other hand, Mr Walvekar, learned counsel for the respondents, submitted that the sale deed was executed not only by defendant nos 1 to 5 but it was also on behalf of the petitioner-plaintiff and it is binding on him and, therefore, unless the issue of ownership is decided the suit for partition cannot be decreed. In the alternative, he submitted that even if the impugned order is set aside it may be kept open for the respondents-defendants, if at any subsequent stage the petitioner seeks possession of the suit property, to raise a similar issue of valuation of the suit. 5. I have perused the plaint so also the impugned order and I find substance in the submissions advanced by Mr -4- Borkar, learned counsel for the petitioner. The learned Judge seems to have reached the conclusion that unless the issue of ownership of the plaintiff is adjudicated upon, no effective relief can be granted in the present suit on the basis of the case set up by defendant nos 6 to 8 that the sale deed was executed by Sunil Jadhav on the strength of the power of attorney executed by the petitioner and defendant nos 1 to 5. A plain reading of the plaint would show that the petitioner has prayed for partition and separate possession of 1/6th share and he has further prayed that the portion of the property, which is already in his possession, he may be allowed to retain the same as his share in the suit property. It, thus, appears that the petitioner has claimed in the suit that he is already in possession and, therefore, he has not prayed for possession of the suit property. Insofar as the issue of ownership is concerned, in my prima facie opinion, that is not an issue at all since admittedly the petitioner and defendant nos 1 to 5 were the owners of the suit property before execution of the sale deed in favour of defendant nos 6 to 8. From the averments in the plaint, it cannot be stated that the petitioner had given power to Sunil Jadhav to execute the sale deed on his behalf in favour of defendant nos 6 to 9. That does not appear to be the case of the petitioner. Even if it is assumed, as stated by defendants nos 6 to 9, that the petitioner also had given a power to Sunil Jadhav -5- to execute the sale deed and if the court on the basis of the pleadings of the defendants and the evidence in support thereof, that would be led by them, reach such conclusion, perhaps the issue of ownership of the petitioner and/or of defendant nos.6 to 9 need not be gone into since the petitioner in that eventuality may not be entitled for partition. However, I would not like to make further comments/observations since the suit is yet to be tried. It is well settled that the question of court fees must be considered in the light of the averments made in the plaint and its decision cannot be influenced either by the case set up by the defendants or by the final decision in the suit on merits. The pleadings in the plaint only will have to be considered for determining the court fee. The learned Judge, in the instant case, seems to have got influenced by the case set up by defendant nos 6 to 9. In the circumstances, the impugned order deserves to be set aside. Order accordingly. However, this shall not preclude the defendants from moving the court for proper valuation of the suit in the event the petitioner seeks any relief by way of an amendment relating to the delivery of possession at any subsequent stage and if such an application is made by the defendants the court shall consider the same on merits in accordance with law. With these observations, rule is disposed of. The trial Court shall deal with the suit on merits in accordance with law -6- without being influenced by the observations made in this order. (D.B.Bhosale,J.) (D.B.Bhosale,J.) (D.B.Bhosale,J.)