1 AO 26 OF 2011 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.26 OF 2011 Dr. Amaresh Goragandhi and ors .. appellants. -versus Municipal Corporation of Brhihan Mumbai.. Respondent. Mr. S.P. Ghaste, for the appellant Mr. S.A. Sawant with Mr.H.V. Kode and J.S. Chandani, for the respondent No.5. Mrs. K.K. Soraan, for respondent corporation. CORAM: A. S. OKA, J. DATED: 20th April, 2011 P.C. 1. Heard learned counsel appearing for the appellants. Appellants are the original plaintiffs. By the impugned order, the learned trial Judge has held that the suit has been incorrectly valued in accordance with section 6(iv)(j) of the Bombay Court Fees Act, 1959 (hereinafter to be referred to as “the said Act”). Leaned Judge has held that the suit ought to have been valued as per section 6(iv)(d) of the said Act. Since pecuniary limit of the jurisdiction of the City Civil Court is Rs. 50,000/-, the plaint was ordered to be returned to the appellants for presentation to the proper Court. 2. Learned counsel for the appellants invited the attention of this Court to averments made in the plaint and the 2 AO 26 OF 2011 prayers. He submitted that the case of the appellant is that the possession of the suit property being open passage admeasuring 40 ft x 11.7 ft x = 468 sq. feet situated on the eastern side of the plot bearing C.T.S.No.337 (part), Malabar Hill, Mumbai was never taken over from the plaintiffs/appellants. He submitted that therefore the reliefs which are claimed, are not susceptible of monetary evaluation. He submitted that the suit has been rightly valued as per section 6(iv) (j) of the said Act. He, therefore, submits that the approach of the learned trial judge is erroneous. 3. I have carefully considered the submissions. Prayers (a) and (b) in the plaint reads thus :- “(a) that this Hon’ble Court be pleased to pass orders for a declaration that the open passage admeasuring 40 ft x 11.7 ft = 468 sq ft. (approx.) situated on the east side of the plot bearing C.T.S.No.337 (part), Malabar Hill, Tardeo Division, Mumbai is owned by the plaintiffs. (b) that the Defendant No. 1, 2, and 5 be directed by a mandatory orders to restore the said open passage on the east side of C.R.T. No.337 (part), Malabar Hill, Tardeo Division, Mumbai owned and left by the Plaintiffs to its original position by demolition of construction, if any, done and/or filing with appropriate material” 4. Thus, by prayer (a) appellants are seeking a declaration of ownership in respect of open area 468 sq feet situated at Malabar Hill, Tardeo Division, Mumbai. Prayer 3 AO 26 OF 2011 clause (b) proceeds on the assumption that there is construction carried out on the property subject matter of the suit and therefore, there is prayer for mandatory injunction directing respondent Nos 1, 2 and 5 to restore the suit property to its original condition. 5. Clause (j) of section 6(iv) of the said Act is applicable to a suit for declaration where the subject matter in dispute is not susceptible of monetary evaluation. In the present case, the subject matter in dispute in the suit is an area of land admeasuring 468 sq feet situated at Malabar Hill, Mumbai, which is certainly susceptible of monetary evaluation. Hence said clause (j) will not apply. 6. The clause (d) of Section 6 (iv) is applicable to a suit for declaration of ownership of immovable property. Therefore, it is obvious that suit will be governed by clause (d) of section 6(iv) as the prayer is for declaration of ownership of an immovable property. Hence, the appellant will be liable to pay ¼th of ad valorem Court fee leviable for a suit for possession on the basis of title. The suit for possession is governed by clause (v) of section 6 of the said Act which requires the suit to be valued in accordance with market value of the suit property. 7. By no stretch of imagination, it can be stated that market value of the land admeasuring 468 Sq feet situated in most expensive locality like Malabar Hill, Mumbai was less 4 AO 26 OF 2011 than a sum of Rs.2,00,000/- on 10th July, 2010 when the suit was instituted. Therefore, the valuation for jurisdiction and Court fees will in any event exceed Rs.50,000/-. 8. Hence learned trial Judge was right in holding that the City Civil Court does not have pecuniary jurisdiction to entertain and try the suit. There is no merit in the appeal and the same is accordingly dismissed. 9. Civil Application No. 32 of 2011 does not survive and the same is disposed of. (A. S. OKA, J.)