1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Civil Revision Application No.15 of 2009 (Sanjay Haribhau Suryawanshi v. Sau Meera w/o Govind Nagose and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri N.B. Kalwaghe, Advocate for Applicant. Shri P.A. Deshmukh, Advocate for R- 1. Coram : R.C. Chavan, J. Dated : 16 th July, 2009 1. This revision is directed against the order passed by the learned Civil Judge, Junior Division, Katol, whereby he rejected the application of defendant No.9 under Order VII, Rule 10 of the Code of Civil Procedure for return of plaint to be presented before the proper Court. 2. Defendant No.9, i.e. the appellant before this Court, is the purchaser of property from defendant Nos.4 to 8 for a sum of Rs.3,01,000/-. This property is field survey No.107 at Village Malegaon, admeasuring 3 hecatres and 1 are. The plaintiffs filed the suit for partition and separate possession of 2 joint family property, which comprises of two other fields, namely field survey Nos.151/1 and 160, admeasuring 2.94 hectares and 0.85 hectares respectively, in addition to field survey No.107, which had been sold by defendant Nos.4 to 8 to defendant No.9. The plaintiffs submitted in para 5 of the plaint that since the sale-deed was executed by defendant Nos.4 to 8 without knowledge and consent of the plaintiffs, it was not binding on them to the extent of their half share. They stated in para 7 of the plaint that when they learnt of transfer of field survey No.107 in the first week of Feburary 2005, the cause of action to file the suit arose when defendant Nos.4 to 8 executed the sale-deed of field survey No.107 in favour of defendant No.9 illegally. They then valued the suit for the purpose of jurisdiction on the basis of the land revenue of the fields concerned and their half share in the property and filed the suit before the learned Civil Judge. 3. Defendant No.9 stated that since he had purchased the property for Rs.3,01,000/- and since the plaintiffs had challenged the sale-deed, the Court at Katol did not have jurisdiction to try the suit and, therefore, prayed that the plaint be returned for its presentation before the proper Court. 3 4. Since the learned Trial Judge has rejected the application, while at the same time observing that it was necessary for the plaintiffs to pay court fee as per half value of the sale-deed, defendant No.9 has preferred this revision. 5. I have heard the learned counsel for the applicant and did not find it necessary to call upon the learned counsel for the respondent to address me. 6. The learned counsel for the applicant placed reliance on the judgment of the Supreme Court in Corporation of the City of Bangalore v. M. Papaiah and another, reported at AIR 1989 SC 1809, in which a suit for specific performance of contract was under consideration. The Court observed in para 4 of the judgment that it was well established that for deciding the nature of a suit, the entire plaint has to be read and not merely the relief portion, and that the plaint in that case did 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 Corporation. As far as the proposition that the entire plaint has to be read is concerned, there is absolutely no doubt. In this case, the reading of plaint does not show that the plaintiffs have questioned the 4 sale-deed executed by defendant Nos.4 to 8 in favour of defendant No.9. They have only stated that it was not binding upon them. 7. The learned counsel for the applicant also placed reliance on an unreported judgment in Civil Revision Application No.12 of 2009, decided on 31-3-2009, contending that the facts in the said case are similar to those of the present case. In that case too, there was a sale-deed. The plaintiffs had claimed that the sale-deed executed in favour of defendant No.5 in that case was bogus, sham and null and void. Copy of the sale-deed was filed on record and the plaintiffs had challenged the sale-deed by pleadings in the plaint. No relief of declaration or cancellation of the sale-deed was sought and, therefore, the court fee was not paid accordingly. The Trial Court held that since the suit was for partition and the plaintiffs had not claimed declaration or cancellation of sale-deed, it was not necessary to pay court fee. The defendants therein had also applied for return of the plaint for its presentation before the proper Court. The Trial Judge rejected that application and, therefore, the defendants were before this Court. This Court held that it was clear from the pleadings in the plaint that the plaintiffs were seeking a declaration that the sale-deed executed in favour of defendant No.5 is null and void and 5 not binding on them, though a specific prayer of declaration was not made. It was also pleaded that it was necessary to declare that defendant No.5, transferee, on the basis of the illegal sale-deed, did not get any right, title or interest in the suit property against the interest of the plaintiffs. Thus, indeed, a prayer of declaration was made in the pleadings, though it was not specifically included in the prayer clause. In this background, this Court held that the suit was not properly valued and that the property was valued at least at Rs.2,80,000/- and, therefore, the learned Civil Judge, Junior Division, did not have jurisdiction to entertain and try the suit and had to follow the steps for return of the plaint under Order VII, Rule 10 of the Code of Civil Procedure. 8. The learned counsel for the applicant submitted that in view of this finding on similar facts, it should follow that even the impugned order in this case should be set aside and the learned Trial Judge should be directed to return the plaint for its presentation before the proper Court. 9. It has to be seen that in a partition suit, it is not always necessary for a party to have an alienation set aside, if the interests of the parties seeking a partition are secured by the property of the vendor, which remains with the vendor. In this case, the plaintiffs had 6 sought partition and separate possession of half of their share in three properties. It would be possible for the learned Trial Judge in the event of a decree in favour of the plaintiffs to put them in possession of the remaining property, and to put the property, which has been alienated, to the share of the vendor. Therefore, it was not necessary for the plaintiffs to seek a declaration that the sale-deed is void. In any case, it is their choice and they have not done so. It has to be mentioned that in the suit, out of which Civil Revision Application No.12 of 2009 arose, there was a specific pleading that the sale-deed in question was bogus, sham and null and void. Such are not the allegations in the present plaint. Here the plaintiffs only state that it was not binding upon them to the extent of their half share. Therefore, since the suit has to be examined with reference to frame of the pleadings, it cannot be said that the learned Trial Judge erred in rejecting the applicant’s application Exhibit 18, in spite of his observation that in his opinion, it was necessary for the plaintiffs to pay court fee as per half of the value of the sale-deed. That observation would hurt the plaintiffs and not defendant No.9, and since they have not made any grievance, need not be dealt with. 7 10. The revision application is, therefore, rejected. Judge. pdl