1 (SA715/10 with CAS1911/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.715 OF 2010 WITH CIVIL APPLICATION NO.1911 OF 2010 IN SECOND APPEAL NO.715 OF 2010 Shri Pramod Rajaram Patkar ... Appellant. V/s Shri Shridhar Ladu Madwal and Ors .... Respondents. Shri A.G. Damle for the appellant. CORAM: V. M. KANADE, J. DATE : 11th March, 2011 P.C.:- 1. Heard the learned Counsel for the appellant. 2. Appellant is the original defendant and the respondent No.1 is the original plaintiff. 3. Brief facts are as under:- 2 (SA715/10 with CAS1911/10 4. So far as the suit property is concerned, initially one Ladu Madwal was declared to be tenant in respect of the suit property and an order under section 32-G was thereafter passed. He paid the purchase price and a Certificate under section 32-M was also issued in his name. Plaintiff is the son of the said Ladu Madwal. Defendant No.1 is the sister of the said Ladu Madwal and defendant No.2 is her husband and defendant No.3 is her son. For the sake of convenience, parties hereinafter shall be referred to as “plaintiff” and “defendant”. 5. Plaintiff has filed a suit for declaration that he is the owner of the suit property and for perpetual injunction restraining the defendant from interfering with his possession and, in the alternative, for decree of possession. The trial court decreed the suit. It, however, held that the plaintiff had not proved that he is in possession of the suit premises and directed the defendant to hand over possession of the suit property. Since the suit was valued under the provisions of section 6(iv)(j) of the Bombay Court Fees Act, the court directed the plaintiff to pay court fees for the relief of possession as per the provisions of Bombay Court Fees Act. Against this judgment and order, an appeal was filed by the defendant. The lower appellate court confirmed the finding recorded by the trial court and dismissed the appeal. 3 (SA715/10 with CAS1911/10 6. Shri Damle, the learned Counsel appearing on behalf of the appellant/original defendant submitted that the trial court had erred in valuing the suit property under the provisions of section 6(iv)(j) of the Bombay Court Fees Act, 1959. He submitted that the Trial Court had erred in coming to the conclusion that the claim of the plaintiff alongwith the relief of perpetual injunction fell within the ambit of the provisions of section 6(iv)(j). It is submitted that the lower appellate court had not taken into consideration this aspect at all and there is no discussion on this point. He, however, candidly admitted that a specific ground to that effect was not raised by the defendant in the appeal memo before the lower appellate court. It is submitted that the civil court did not have jurisdiction to try and decide the said suit since consolidation proceedings were initiated in respect of the said land and, in the said proceedings, the Consolidation Officer has clearly mentioned in his order that the defendant was also in possession of the suit property. It is submitted that, therefore, civil court could not go into the said issue in view of the finding given by the Consolidation Officer. It is submitted that, though, both the courts had given concurrent finding in respect of possession of the suit premises, both the courts below had committed an apparent error of law in granting decree in favour of the plaintiff. He submitted that the suit was filed for perpetual injunction and, in the alternative, a prayer was made for possession. 4 (SA715/10 with CAS1911/10 He submitted that, therefore, since the perpetual injunction was not granted by both the courts below, the prayer for possession could not be granted since no declaration was sought by the plaintiff. 7. It is not possible to accept the submissions made by the learned Counsel for the appellant herein. So far as the question of payment of court fees is concerned, though, initially, the suit was valued under the provisions of section 6(iv)(j), after the decree for possession was passed by the trial court, the trial court had directed the plaintiff to pay the requisite court fees within eight days from the judgment and order. It does appear that plaintiff had, therefore, paid the court fees. Perusal of the appeal memo filed by the original defendant in the appellate court discloses that this ground has not been taken by him in the appeal memo. Obviously, therefore, there is no discussion on this point made by the learned District Court. So far as the submission regarding jurisdiction of the civil court is concerned, it is a well settled position in law that in view of the provisions of section 34 of the Specific Relief Act, civil court alone has jurisdiction to grant relief of declaration of ownership of the property. The lower appellate court, therefore, has taken into consideration this aspect and has rejected the submission of the defendant. So far as the third submission made by the learned counsel for the appellant regarding relief claimed by the plaintiff is concerned, a perusal of the plaint clearly 5 (SA715/10 with CAS1911/10 discloses that the plaintiff has initially asked for a declaration of ownership of the land and a consequential relief of perpetual injunction and, in the alternative, he has also asked for relief of possession. In my view, the suit which is filed by the plaintiff is clearly maintainable and, in such cases, court has jurisdiction to pass the order for declaration and direct the defendant to handover possession. Both the courts below have recorded concurrent finding that defendant is in possession of the suit premises. Defendant was unable to point out or produce any document to prove his title over the suit land. Defendant being the son of sister of original tenant does not fall in category of Class-I heir and, therefore, he cannot claim ownership of the said land. This aspect is also considered by the lower appellate court. Hence, no substantial question of law is raised in this appeal. 8. Second appeal is, therefore, dismissed. Since this second appeal itself is dismissed and disposed of, Civil Application No.1911 of 2010 does not survive and the same is accordingly disposed of. (V.M. KANADE, J.) 6 (SA715/10 with CAS1911/10