1 ao417-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa APPEAL FROM ORDER NO.417 OF 2010 Laxman Maruti Rajapure & Ors. .. Appellants V/s. Rajaram Jagannath Magar & Ors. .. Respondents ..... Mr. P. B. Gujar for the appellants. Mr. Abhijit Adagule for respondent No. 1 to 3. ..... CORAM : A. S. OKA, J. DATE : APRIL 21, 2011. ORAL JUDGMENT :­ Heard the leaned counsel appearing for the appellants and the learned counsel appearing for respondent Nos. 1 to 3. By the impugned Judgment and order, the learned Civil Judge Junior Division, Satara has ordered that the plaint filed by the appellants to be returned to them for its presentation to the Court having jurisdiction. 2 ao417-10 2. The appellants filed the suit for declaration that the suit property was owned by joint family of the appellants and the 4th respondent and that the sale deed dated 25th May, 2008 executed by the 4th respondent in favour of first to third respondents was not binding on the share of the appellants. Consequential prayer for perpetual injunction was made. 3. Issue of valuation of the suit and the issue of pecuniary jurisdiction of the Court of Civil Judge (Junior Division) to entertain the suit were framed. By the impugned order, the learned trial Judge held that as far as the declaration prayed for in the first part of the first prayer of the plaint is concerned, the same will be governed by Section 6(iv)(d) of the Bombay Court Fees Act, 1959 (hereinafter referred to as the “said Act”). The second finding is that as a declaration has been prayed for that sale deed dated 21st May, 2008 is not binding on the share of the appellants, the Section 6(iv)(ha) of the said Act 1959, will apply and the market value of the share of the appellants will be more than Rs.24,00,000/­. Hence, it was held that the Court of the Civil Judge (Junior Division) will not have pecuniary jurisdiction to entertain the suit. 3 ao417-10 4. The learned counsel appearing for the appellants submitted that the appellants have accepted the finding of the learned trial Court as regards of the applicability of the Section 6(iv)(d) of the said Act, 1959 to the first part of prayer (a) of the plaint. However, he submitted that Section 6(iv)(ha) will not apply. The learned counsel appearing for the first to third respondents relied upon a decision of this Court in the case of Abdul Gaffar S/o. Abdul Samad Vs. Niranjan Kumar S/o. Ramnth Prasad Dwivedi & Ors [2005(3) ALL MR 179]. He submitted that Section 6(iv)(ha) will squarely apply. 5. The prayer made in the second part of the prayer (a) in the suit is that the sale deed is not binding on the share of the appellants. Section 6(iv)(ha) will apply when a declaration is claimed that any sale or contract of sale is void. In the present case the appellants are not contending that the sale deed is void. Their contention is that sale deed may be otherwise valid but the same is not binding on their share in the suit property. Therefore, Section 6(iv)(a) will not apply in the present case. As far as the decision of this Court in the case of Abdul Gaffar Abdul Samad (Supra), this Court was dealing the suit filed where a declaration was prayed that the agreement for 4 ao417-10 development is void and is not binding on the plaintiff. As there was a prayer that the document was void, this Court held that Section 6(iv)(ha) will apply. 6. In any event, it must be stated that as the suit was filed in the Court of Civil Judge Senior Division having jurisdiction to entertain the same, even assuming that the valuation was not correct, in view of the mandate of paragraph 233 of the Civil Manual, an order of return of plaint could not have been passed. 7. Hence, I pass the following order : :: O R D E R :: i. The impugned order dated 16th December, 2009, passed by the trial Judge is set aside. ii. However, the finding recorded by the trial Court on applicability of Section 6(iv)(d) of the Bombay Court Fees Act, 1959 is confirmed. The finding as regards the applicability of Section 6 (iv)(ha) is set aside and it is 5 ao417-10 held that the said provision will not apply. iii. The trial Court will proceed with the suit in accordance with law. If the trial Court finds that suit is beyond its pecuniary jurisdiction, the course suggested by paragraph 233 of the Civil Manual shall be followed. iv. The Appeal is allowed on above terms with no order as to costs. JUDGE