gst 1 CRA132-33-34.11.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. CIVIL REVISION APPLICATION NO. 132 OF 2011 WITH CIVIL REVISION APPLICATION NOS. 133 & 134 OF 2011. Shiv Associates .... .... ..... ..Applicant. V/s Smt.Suman Chandrakant Waghere & Ors. Smt.Bharati Ram Waghere & Ors. Smt.Ankush Dhondiram Waghere & Ors. ... ..... ..Respondents. Mr.Uday Warunjikar, Adv. For the applicant. Mr.P.B.Kulkarni, Adv. For R.Nos.1 to 4. CORAM: B.R. GAVAI, J. 7th April, 2011 PC: By way of present revision application the applicants are challenging the order dated 4.1.2011 in three suits filed by the respondents thereby rejecting the application under section 9A of the Code of Civil Procedure. The respondents- plaintiffs who claim to be co-parceners in joint family property have filed three suits for declaration that they are entitled to their share in the suit property for possession of their share. The plaintiffs have also prayed for declaration that sale deed executed by the defendant No.2 in favour of present applicants was not binding to their share. On being noticed the applicants have filed an application raising preliminary objection in view of the provisions of section 9A of CPC on two grounds; firstly that even according to the ready reckoner price of land in question was 29 lacs and that the applicants had paid development charges to the Corporation to the tune of Rs.60 lacs and that he has also constructed a building on the suit site upto first slab till the filing of the application and as such the suit would be beyond pecuniary jurisdiction of learned Civil Judge, Junior Division. Secondly, that the applicants are residing gst 2 CRA132-33-34.11.sxw on the said land and therefore they were aware of the activities of the applicant and as such suit was filed beyond limitation and as such was liable to be rejected in view of provisions of order 7 rule 11(d) of CPC. The said application is rejected. Hence the present revision application. 2. Mr.Warunjikar, learned counsel appearing on behalf of the applicants submits that suit as filed by the present plaintiffs-respondents was grossly undervalued. He submits that when valuation of the suit is arbitrary and whimsical it is duty of the learned trial Court to rejected the same. In this respect learned counsel relies on a judgment of the Apex Court in the case of Abdul Hamid Shamsi Vs. Abdul Majid & Ors., (1988) SCC 575. He further submits that in effect the plaintiffs have prayed for cancellation of sale deed executed in favour of the applicant by defendant No.2 and as such the learned trial Court ought to have rejected the suit on the ground that it was grossly undervalued. 3. Mr.Kulkarni, learned counsel appearing on behalf of the respondents- plaintiffs on the contrary submits that suit has been rightly valued taking into consideration the provisions of section 6 para VII and para V of the Bombay Court Fees Act, 1959. He therefore submits that no interference is warranted. Learned counsel relies upon a judgment of the Apex Court in the case of Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Ors., 2010 ALL SCR 1027. Mr.Kulkarni further relies upon a judgment of the Apex Court in the case of Mahdaorao & Ors. Vs. The State of Maharashtra, AIR 1972 SC 45. 4. By now it is settled law that for considering the aspect of jurisdiction what would be relevant is the averments made in the plaint. From the perusal of pleadings made in the plaint it would reveal that plaintiffs have basically filed a suit for declaration, partition, possession and for further declaration that sale deed in question was not binding to their share. It can thus be seen that the suit would be governed by para VII read with Para V of the Bombay Court Fees Act, 1959. It can further be seen that in so far as sale deeds are concerned the gst 3 CRA132-33-34.11.sxw only relief that is claimed is that sale deed in question is not binding to the share of the plaintiffs. The plaintiffs have not prayed for cancellation of sale deed. Reliance placed by learned counsel for the respondents-plaintiffs on the judgment of the Apex Court in the case of Suhrid Singh @ Sardool Singh (supra) is well placed. The Apex Court in para 7 of the said judgment observes thus: “7. In this case, there is no prayer for cancellation of the sale- deeds. The prayer is for a declaration that the deeds do not bind the “co- parcenery” and for joint possession. The plaintiff in the suit was not the executant of the sale-deeds. Therefore, the court fee was computable under section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale-deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale-deeds.” “4. It appears that according to the view of the High Court the Court-fee is payable under S. 6(I) (v) even with regard to land on its value which according to the counsel for the State would be the market value. In our judgment Section 6(i) (v) does not admit of any such method of calculating the Court fee where the subject matter is land. There is no doubt that where the subject matter is a house or a garden, in a suit for possession the Court fee has to be paid according to the market value of the house or garden but where the subject matter is land the Court fee has to be calculated according to what has been provided in the sub-clauses (a), (b) and (c) with regard to different categories of land. It may be that in Clause (v) the land which has not been assessed to land revenue is not covered by sub-cls. (a), (b) and (c) but then the Court fee will have to be calculated under some other provision of the Act but not on the basis of the value of the land.” gst 4 CRA132-33-34.11.sxw It can thus be seen that since the land in question is assessable to land revenue no error could be found with the order passed by the learned trial Court and specifically the view taken by the Apex Court in the case of Mahdaorao & Ors. (supra). 5. In so far as the judgment of the Apex Court on which the learned counsel relies is concerned no doubt the learned counsel for the applicants is rightly submitting that when valuation of relief by the plaintiff is arbitrary or whimsical the suit would be liable to be rejected. However facts in the case cited are totally different than the facts for consideration in the case before this Court. In the present case as stated herein above the suit is for partition, possession and declaration and would be governed by para VII read with para V of Section 6 of the Bombay Court Fees Act. Since the partition which is sought is of agricultural lands, the court fee will have to be paid on the basis of land revenue payable towards said agricultural lands. From the perusal of the valuation made by the applicant it cannot be said that applicants have valued the suit arbitrarily or whimsically. On the contrary the suit has been valued taking into consideration the provisions of para VII and Para V of section 6 of the Bombay Court Fees Act. Apart from that the Apex Court in the aforesaid case itself states that normally valuation as made by the plaintiff has to be accepted unless it is found that the valuation made is arbitrary or whimsical. For the reasons aforesaid I am of the considered view that valuation made by the plaintiffs cannot be said to be arbitrary or whimsical. 6. In so far as contention regarding limitation is concerned, from the perusal of the plaint it would reveal that the plaintiffs have stated that cause of action arose to file a suit when defendant No.1 had published a notice in daily “Prabhat” on 17.10.2009. If this is disputed by the applicants, the question of limitation would be a mixed question of law and fact which could be only decided at the stage of final hearing of the suit after parties lead their respective evidence. gst 5 CRA132-33-34.11.sxw 7. In that view of the matter it cannot be said that the jurisdiction exercised by the learned trial Court has been exercised with material irregularity to warrant interference. Hence civil revision application stands rejected.