Aabaji Rama Yedme & Anr. vs Tai Chaban Koichade & Ors.

Heard Mr. Qazi, learned Advocate for the applicants and Mr. Bhise, learned Advocate for non-applicant No.2.

By the instant civil revision application, the applicants are praying for quashing and setting-aside the order dated 01.10.2021 at Exhibit 15, passed by learned Joint Civil Judge Junior Division, Rajura, in Regular Civil Suit No.05 of 2021. The applicants are further praying for issuance of directions to non-applicant Nos.1 to 4, who are original plaintiffs in the said suit, to pay the deficit court fees, failing which reject the plaint filed by non-applicant Nos.1 to 4.

According to the applicants, non-applicant Nos.1 to 4 i.e. original plaintiffs have filed a suit bearing R.C.S. No.05 of 2021, for declaration, partition, separate possession and permanent injunction against the applicants (original defendant Nos.2 and 3) and non-applicant No.5 (deleted) (original defendant No.1). In the said suit, the plaintiffs have claimed that agricultural land bearing Survey No.154 (old), admeasuring 6.66 H.R., presently Survey No.187 (new), Mouja Pelloa, Tahsil Rajura, is the ancestral property belonging to their grandfather viz. Kondu Dama Gond Madavi. After his demise, the said land devolved upon his son viz. Narayan Kondu Madavi i.e. father of the plaintiffs. The plaintiffs and defendant No.1 (non-applicant No.5-deleted) are the legal heirs of said Narayan. According to the plaintiffs, the said Narayan had not executed any documents in favour of defendant No.1 (non-applicant No.5), in respect of the said land. However, defendant No.1 has mutated his name in the record of rights. Defendant No.1, by taking advantage of entry in 7/12 extract, had executed the power of attorney in favour of defendant No.3 (applicant No.2 herein), in respect of portion of land bearing Survey No.187, admeasuring 4.4 H.R. Thereafter, defendant No.3 (applicant No.2) illegally transferred the said portion of land to defendant No.2 (applicant No.1 herein), by executing sale-deed dated 11.03.2011. Accordingly, entry to that effect came to be taken in the record of rights. Therefore, according to the plaintiffs, the said portion of land is illegally transferred to defendant No.2 (applicant No.1). The plaintiffs contended that the total Survey No.187 was ancestral and there was no partition among the legal heirs and therefore, the land could not be transferred to defendant No.2. Thus, the plaintiffs have claimed that the sale-deed dated 11.03.2011 is not binding upon them.

In the said suit, defendant Nos.2 and 3 (applicants herein) have filed written statement on 08.07.2021. Thereafter, the said defendants had also filed an application for rejecting the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short, “CPC”), on the ground of non payment of valid court fees. According to them, the plaintiffs are claiming that the sale-deed dated 11.03.2011 is not binding upon them, therefore, they are bound to pay court fees on valuation of the sale consideration amount. According to the applicants i.e. defendant Nos.2 and 3, the plaintiffs have not properly valued the suit. The valuation of sale-deed i.e. sale consideration amount has not been shown and no court fees has been paid as per the Maharashtra Court Fees Act, 1959 (for short, “the Act of 1959”).

The plaintiffs (non-applicant Nos.1 to 4 herein) filed their reply to the above said application, thereby strongly objecting the same. According to them, the suit is for partition, separate possession declaration and permanent injunction. The plaintiffs claimed declaration that the sale-deed dated 11.03.2011 is not binding upon them. According to the plaintiffs, there is no necessity to pay the court fees on the valuation of the sale-deed. In the impugned order, the trial court has observed that as per Section 6(iv)(j) of the Act of 1959, in suits where declaration is sought with or without injunction or other consequential relief and the subject matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided for by this Act ad-valorem fee payable, as if the amount or value of the subject matter was One Thousand Rupees. The trial court has further observed that the plaintiffs claimed declaration that the sale-deed is not binding upon them. They did not claim declaration of the sale-deed is null and void. Therefore, as there being a difference in both the claims, the trial court rejected the application at Exhibit

Being aggrieved by the said order, the applicants (defendant Nos.2 and 3) have approached this Court under Section 115 of CPC and filed the instant revision application.

Mr. Qazi, learned Advocate for the applicants submitted that the impugned order passed by the trial court is patently illegal. He submitted that the declaration sought by the plaintiffs (non-applicant Nos.1 to 4 herein) can be monetarily valued. The plaintiffs are claiming their share in the joint family property. Therefore, the claim of the plaintiffs is covered by Section 6(vii) of the Act of 1959. The claim of the plaintiffs is also covered by Section 6(iv)(ha) of the Act of 1959, as the declaration sought by the plaintiffs can be monetarily valued. Therefore, the provisions of Section 6(iv)(ha) and 6(vii) of the Act of 1959, are squarely applicable.

Mr. Qazi, learned Advocate for the applicants relied on judgment delivered by this Court in the case of Abdul Sattar Gulabbhai Bagwan Vs. Vaibhav Laxmangiri Gosawi and Others, reported in 2012(2) Mh.L.J. 285 and Prism Reality, Pune Vs. Govind Yashwant Khalade and Others, reported in 2015(2) Mh.L.J. 472, and submitted that as the plaintiffs are seeking avoidance of said sale or contract, therefore, the provisions of Section 6(iv)(ha) of the Act of 1959, can be made applicable. Merely because the plaintiffs are not claiming the relief of cancellation of sale-deed, does not amount to hold that their monetary valuation is not covered under the provisions of Section 6(iv)(ha) of the Act of 1959.

Per contra, Mr. Bhise, learned Advocate for non-applicant No.2 submitted that the impugned order passed by the trial court, thereby rejecting the application under Order VII Rule 11 of CPC is correct and proper. The plaintiffs are claiming partition and other consequential reliefs in the suit property, therefore, no interference is required in the findings recorded by the trial court. In support of his submissions, he relied on judgment of the Principal Seat of this Court in the case of M/s. Diamond Developers Vs. Mr. Krishna Sitaram J. Shetty and Others, Decided on 20.12.2017 in Civil Revision Application No.358 of 2016. He submitted that the judgment relied upon by the applicants has been discussed in the above stated judgment. It has been held that as the declaration sought by the plaintiffs was not susceptible for monetary evaluation, therefore, the provisions of Section 6(iv)(ha) of the Act will not be applicable for declaration.

After hearing learned Advocates for the parties and looking into the controversy in the instant matter, initially, it is useful to refer to the prayer clauses sought in the plaint. As per prayer clause ‘i’, the plaintiffs have prayed for partition, thereby separating 1/5^th share in the suit property. At prayer clause ‘ii’, the plaintiffs have sought relief for declaration that sale-deed executed by defendant No.3 (applicant No.2 herein) in favour of defendant No.2 (applicant No.1 herein), is without effecting partition and not binding upon them. As per payer clause ‘iii’, the plaintiff have prayed for grant of permanent injunction not to create third party interest or transfer the suit property to any other person by the defendants. Thus, the plaintiffs have not filed a suit simplicitor for declaration with any consequential relief of injunction, but they have filed a suit for partition and separate possession and their shares in the ancestral property. Thus, the suit is covered under Section 6(vii) of the Act of 1959. Section 6(vii) states as under.

Thus, the aforesaid provision makes it clear that co-owner has to pay court fees according to the value of his share in the suit property. Hence, in a suit for partition, the property in respect of which another co-owner/defendant if created third party interest, his very much part of joint family property and in respect of the same, for claiming the relief of partition and separate possession, the plaintiff has to pay court fees as per the value of his share in respect of which the suit is instituted. Thus, the trial court, while passing the impugned order, has failed to consider that the prayer in respect of partition, thereby claiming share in the joint family property would fall under Section 6(vii) of the Act of 1959. The trial court erroneously considered that the plaintiffs have to pay the court fees in pursuance of Section 6(iv)(j), holding that the relief sought by the plaintiffs is not susceptible of monetary evaluation. This Court in M/s. Diamond Developers (Supra), has observed in para.25, 26 and 27, as under.

As pointed out by Mr. Qazi, this Court in Abdul Sattar (Supra), has observed that the plaintiffs are required to value the suit in terms of Section 6(iv)(ha) of the Act of 1959 and not in terms of Section 6(iv)(j), as has been done by him. In Prism Reality (Supra), it is held that merely because the plaintiffs questioned the sale-deed as being bogus and sham, therefore, they cannot be exempted from rigours Section 6(iv)(ha). He also placed reliance on judgment delivered by this Court in the case of Abdul Gaffar Vs. Niranjan Kumar and Others, reported in 2004 SCC Online Bom 1023. In the said judgment also, the plaintiff was held liable to pay the court fees in pursuance of Section 6(iv)(ha) and not as per Section 6(iv)(j).

The judgment relied by the learned Advocate for the applicants in the case of Prism Reality (Supra), was referred to the larger Bench for deciding the issue i.e. the court fees payable in regard to the suit for declaration that sale-deed to which the plaintiff shall not privy/party is void and not binding upon the plaintiff for consequential relief of injunction. The said reference is answered in Dilip Khushalchand (Srisrimal) Jain and Others Vs. Hardik Deepakbhai Ramani and Others, Decided on 05.05.2022, in Writ Petition No.8968 of 2018. In the said case, it is held that Section 6(iv)(ha) of the Act of 1959, would be applicable only to the plaintiff who is party to the sale-deed seeking declaration of avoidance of sale-deed. It would not be applicable to the plaintiff who are not party to instrument seeking declaration of avoidance of sale-deed. Such plaintiff would be governed by Section 6(iv)(j) as it is not susceptible of monetary evaluation. Thus, having answered the issue as regards the applicability of Section 6(iv)(ha) or Section 6(iv)(j), this Court has held that in a suit where the plaintiff is the party to the sale-deed, seeking declaration of avoidance of sale-deed would be required to pay the court fees as per Section 6(iv)(ha). Whereas, if the plaintiff is not party to instrument and seeking declaration of avoidance, such plaintiff would be governed under Section 6(iv)(j), as it is not susceptible of monetary evaluation.

However, the next question which arises in this matter in respect of prayer clause ‘i’, wherein the plaintiffs have prayed for partition and separate possession of their shares in the joint family property. As stated earlier, the provisions of Section 6(vii) of the Act of 1959, will come into play for the purpose of computation of court fees payable in a suit for partition and separate possession. This Court in M/s. Diamond Developers (Supra), while relying upon the judgment delivered by this Court in the case of Shri Jayant Bhimsen Joshi and Others Vs. Shri Raghvendra Bhimsen Joshi and Others, Appeal From Order No.149 of 2014, Dated 23.10.2015, it is held that in a suit for partition and separate possession, the valuation has to be done under Section 6(vii). Therefore, in my opinion, as the court fees has to be paid as per Section 6(vii) of the Act of 1959, the matter needs to be remanded to the trial court to correct the valuation of the suit property. Hence, following order is passed.

ii) The order dated 01.10.2021 at Exhibit 15, passed by learned Joint Civil Judge Junior Division, Rajura, in Regular Civil Suit No.05 of 2021, is quashed and set-aside.

iii) The matter is remanded to the trial court for deciding the application at Exhibit 15 afresh.

iv) No order as to costs.