1 wp2196.11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 2196 OF 2011 Suhassinh S/o Mansinh Thakur ..PETITIONER -VERSUS- Keshar W/o Baliram Vairage and another ..RESPONDENTS ..... Mr. S.Y. Mahajan, Advocate for petitioner. Mr. I.D. Shaikh, Advocate for respondents. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 25TH APRIL, 2011. PER COURT : 1. Contention of Advocate Mr. Mahajan is trial Court ought to have directed the respondents-plaintiffs to value the suit properly in accordance with the valuation given in sale deed and further ought to have given him time limit to carry out the amendment. According to Advocate Mr. Shaikh, the order passed is in accordance with law. Advocate Mr. Mahajan has relied upon the judgment reported at "2005(3) Bom.C.R. 878"- Abdul Gaffar Samad V/s Niranjan Kumar Ramnath Prasad Dwivedi and others delivered by me at Nagpur. Advocate Mr. Shaikh has relied upon the judgment of Hon'ble Apex Court reported at "2010 All SCR 1027"- Suhrid Singh @ Sardool Singh V/s Randhir Singh and others. 2 wp2196.11 2. The prayer clause in plaint reveals that property is agricultural property and its assessment is Rs. 1/- and Rs. 1.05. Thus in accordance with provisions of Bombay Court Fees Act r/w suits valuation 200 times of the revenue assessment will not be more than Rs. 500/-. In paragraph no.11 for the purposes of declaration suit is valued at Rs. 1,000/- and court fees has been paid accordingly. Valuation and court fee is obviously in excess. 3. Separate prayer in the suit is protecting his possession i.e. for injunction and for that purposes suit is valued at Rs. 1,000/-. There is dispute between the parties about the person in possession but according to respondent-plaintiff, he is in possession. Hence, for the purposes of court fees this dispute is not relevant. 4. Prayer clause `C' is for cancellation of document dated 04.06.2010. Admittedly, suit is not valued at sale consideration stipulated therein. It is also admitted that plaintiff is not party to this document. In judgment reported at "2005(3) Bom. C.R. 879"- Abdul Gaffar Abdul Samad V/s Niranjan Kumar Ramnath Prasad Dwivedi and others (supra), this Court has not considered situation in which plaintiff is not executant of such 3 wp2196.11 document. Facts there reveal that the plaintiff had entered into an agreement of sale dated 7th March, 2003 for Rs. 1,30,000/- with defendant no.1 and that defendant no.1 had then entered into an agreement with the defendant no.3 on 20th March, 1997. The relevant details are given in paragraph no.3 of that judgment. The question which arises here was not required to be looked into in that matter. 5. The paragraph no.7 of the reported judgment of the Hon'ble Apex Court shows that the prayer was for declaration that deeds do not bind the co-parcenery and for joint possession. The Hon'ble Apex Court noted that plaintiff in trial Court was not executant of those sale deeds. In that background, the legal provisions are construed. 6. Similar position is considered by me in judgment reported at " 2010(6) All M.R. 673" - Sau. Asha Sopan Maithane V/s Ramkrushna Punjaji Wanare and others and it has been found that when plaintiff is not party to such document, the valuation at the face value of such document is not warranted under Section 6(iv) (ha) of Bombay Court Fees Act. 7. Respondent-plaintiff has to carry out the amendment 4 wp2196.11 to bring plaint inconsonance with the Bombay Courts Fees Act and though no time is given, the provisions of Order 4 Rule 18 of the Civil Procedure Code are very clear in this respect. 8. I therefore, do not find any jurisdictional error or perversity. 9. I therefore do not find any substance in the Petition, the Petition is rejected. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp2196.11