When the specific point was raised by the revision applicants herein, i.e. original defendant, in written statement in paragraph-8 that, 9 sale deeds are executed from the period 23rd December, 1994 to 4th January, 2006, and the suit is filed by the plaintiffs on 27th July, 2009 and in view of the provisions of the Limitation Act for filing the suit with prayer that, sale deeds are not binding upon the plaintiffs, three years period is prescribed. Therefore, since the trial Court has not considered the point of limitation, and since the point of limitation is a mixed question of fact and law, it would be appropriate and in the interest of justice to direct the trial Court to consider the point of limitation afresh.
2. This Civil Revision Application is filed challenging the judgment and order dated 4 cra166.12
28th June, 2011, passed by the Joint Civil Judge, Junior Division, Mukhed, below Exhibit-49 in Regular Civil Suit No.69 of 2009.
3. The respondents herein, are the original plaintiffs, filed Regular Civil Suit No. 69 of 2009 for partition and separate possession to the extent of area mentioned in the plaint with further prayer to hold that, 9 sale deeds mentioned in the plaint, are not binding upon the original plaintiffs. . In the said suit, the revision applicants herein, filed detailed written statement and raised points that, as per the Bombay Court Fees Act at the time of praying partition of house property, the price of the suit property should be considered on the date of filing the suit and not on the day of purchase of the suit house. The said property should be valued by the office of Sub 5 cra166.12
Registrar and the Court fees should be paid as fixed by the Sub Registrar. It is stated in the written statement that, valuation of the suit property is shown as Rs.37,500/- and the court fees paid on that basis. But, at present, price of the suit house is R.s2,50,000/- to 3,00,000/- and the applicant has not paid court fees as per the valuation of the suit house. It is further stated in the written statement that, the respondent No.1 has executed sale deed in favour of the respondent Nos. 2 to 7 and the plaintiffs have sought relief of cancellation of the said sale deeds and also to declare the sale deeds null and void and not binding upon the plaintiffs and therefore, as per Bombay Court Fees Act, on every registered sale deed the separate court fee is required to be paid. It is further stated in the written statement that, in paragraph-6 of the plaint, the plaintiffs have claimed that 9 sale deeds shall not be binding on them. After considering the total 6 cra166.12
amount of all the sale deeds, it comes to Rs. 3,35,000/-. The valuation of the suit property comes more than RS.1,00,000/-, hence, Civil Judge, Junior Division, has not jurisdiction to try the suit. It is further stated in the written statement that, period of sale deeds is 23rd December, 1994 to 4th January, 2006 and therefore, as per Indian Limitation Act, suit ought to have been filed within period of three years. If the date of filing of the civil suit is 27th July, 2009 then the suit filed by the original plaintiff Nos. 1 to 9 after the period of three years is barred by limitation and on that count alone, suit is not maintainable.
4. Upon appreciating the rival contentions, the trial Court framed preliminary issue about the jurisdiction of the said Court to try the suit. In that respect, following issue was framed ; 7 cra166.12
"Whether this Court has
jurisdiction to try the suit?".
The concerned Court held that, the suit is not barred on the ground of pecuniary jurisdiction and hence, the suit be tried as per law. Hence, this Civil Revision is filed by the original defendants challenging the order dated 28th June, 2011 passed by the Joint Civil Judge, Junior Division, Mukhed below Exhibit-49 in Regular Civil Suit No. 69 of 2009.
5. The learned Counsel appearing for the revision applicants submitted that, as per Bombay Court Fees Act, at the time of claiming partition of the house property, the price should be considered on the date of filing the suit and not on the day of purchase of the suit house. It is further submitted that, it is also necessary that, the suit property should be valued by the 8 cra166.12
office of the Sub Registrar and the court fees should be paid as fixed by the Sub Registrar but in the present case, valuation of the property is shown as Rs.37,500/- and the court fee is paid on that basis. At present, the price of the suit house is Rs.2,5000/- to 3,00,000/- and the applicant has not paid court fees as per valuation of the suit house. It is further submitted that, as per Bombay Court Fees Act, on every registered sale deed, separate court fee is required to be paid on the consideration amount of the sale deed. However, the plaintiffs have not considered the court fees separately on each registered sale deed, therefore, suit itself deserves to be dismissed. It is further submitted that, the plaintiffs have claimed that, nine sale deeds executed between the respondents inter se are not binding on the plaintiffs. The total amount of consideration of the sale deeds come to Rs.10,35,000/- and therefore, 9 cra166.12
valuation of the suit property exceeds more than Rs.1,00,000/-, hence, Civil Judge, Junior Division, has no jurisdiction to entertain the suit. It is further submitted that, valuation of the suit property comes to Rs.10,35,000/- and therefore, the suit should have been filed before the Civil Judge, Senior Division, Kandhar. It is further submitted that, the suit is not maintainable before the Civil Judge, Junior Division, Mukhed and therefore, on that count alone, the suit filed by the respondents ought to have been dismissed or returned back to the original plaintiffs to present before appropriate Court. It is submitted that, original plaintiffs have claimed that, the said nine sale deeds are not binding upon them. The period of sale deed is 23rd December, 1993 to 4th January, 2006. Therefore, as per Indian Limitation Act,the suit ought to have been filed within period of three years. If the date of filing civil 10 cra166.12
suit is 27th July, 2009 then the suit filed by the original plaintiff Nos. 1 to 9 after period of three years is barred by limitation and on that count alone, the suit is not maintainable. It is further submitted that, original plaintiff Nos. 1 to 9 have filed suit against the defendant No.1 only to harass and for cancellation of the sale deeds. However, to avoid payment of the court fees, the plaintiffs have prayed that, it should be declared that, the sale deeds are not binding upon the plaintiffs. It is further submitted that, the plaintiffs have not included all the properties in common hotch-potch though the suit is filed for partition and separate possession. It is further submitted that, how the plaintiffs are related with the suit property, is not mentioned in the suit. Therefore, the suit suffers from specific mentions about which property is ancestral property, who is original owner of the property, how the 11 cra166.12
entries are effected and entitlement of the plaintiffs in the suit property.
. It is submitted that, in the impugned judgment, the concerned Court has considered the provisions of Rule 2 of the Maharashtra Suit Valuation (determination of value of land for jurisdictional purposes) Rules, 1983, however, the concerned Court has not given proper reasoning on the aspect of the claim of the plaintiffs that, nine sale deeds are not binding upon them. If the valuation of 9 sale deeds is considered, it comes to Rs.10,35,000/- which is admittedly more than Rs.1,00,000/- and therefore, Civil Judge, Junior Division has no jurisdiction to entertain the said suit.
6. On the other hand, the learned Counsel appearing for the respondents submits that, proper court fee is paid by the original plaintiffs. The plaintiffs have not 12 cra166.12
asked for cancellation of the sale deeds, however, the relief is sought that, the sale deeds are not binding upon the plaintiffs. The learned Counsel further submitted that, the trial Court has recorded the reasons in support of its order, relying upon Rule (2) of the Maharashtra Suit Valuation (Determination of value of land for Jurisdictional purposes) Rules, 1983 and therefore, this Court may not interfere in the impugned judgment. In support of his contention, the Counsel appearing for the respondents pressed into service reported judgment of the Calcutta High Court in the case of Sm. Golapmoni Ray and others vs. Nanigopal Roy and others [AIR 1980 Calcutta 74]. Relying upon the said judgment, the Counsel for the respondents submits that, this writ petition deserves to be dismissed.
7. I have given due consideration to the rival submissions. Three-fold contentions 13 cra166.12
are raised by the Counsel for the revision applicants. Firstly, the suit filed by the plaintiffs with prayer that, the sale deeds are not binding upon the plaintiffs, is not filed within limitation. Secondly, since the relief of cancellation of the sale deeds is sought, the plaintiffs ought to have paid court fees on the market value of the said properties which is subject matter of the 9 sale deeds and thirdly, while considering the valuation of the house, the current market price of the said house is not taken into consideration by the concerned Court. . The first contention of the Counsel appearing for the revision applicants that, the suit filed by the original plaintiffs i.e. respondents herein, was not within limitation, has some substance. Upon careful perusal of the impugned judgment and order, it is abundantly clear that, the trial Court has not considered the point of limitation. 14 cra166.12
When the specific point was raised by the revision applicants herein, i.e. original defendant, in written statement in paragraph-8 that, 9 sale deeds are executed from the period 23rd December, 1994 to 4th January, 2006, and the suit is filed by the plaintiffs on 27th July, 2009 and in view of the provisions of the Limitation Act for filing the suit with prayer that, sale deeds are not binding upon the plaintiffs, three years period is prescribed. Therefore, since the trial Court has not considered the point of limitation, and since the point of limitation is a mixed question of fact and law, it would be appropriate and in the interest of justice to direct the trial Court to consider the point of limitation afresh.
8. The second point raised by the revision applicants that, while considering the price of the suit land, which is the subject matter of nine sale deeds, the 15 cra166.12
concerned Court should have taken into consideration the current market price of the suit land which is suit matter of nine sale deeds are concerned, said contention is devoid of any merits. In respect of nine sale deeds, the plaintiffs have sought limited relief that those sale deeds are not binding upon them. The plaintiffs have not prayed that, the sale deeds should be cancelled. It is the specific case of the plaintiffs that, they are not party to the said sale deeds and therefore, it should be declared that,those sale deeds are not binding upon the them. The trial Court has rightly pressed into service Rule (2) of the Maharashtra Suit Valuation (Determination of value of land for Jurisdictional purposes ) Rules, 1983 for the purpose of determining the value of the property, which reads thus : a) Where the subject is house or garden- according to the market value of the house or 16 cra166.12
garden as the case may be ;
b) Where subject matter is land - a sum equal to 200 times of the assessment payable in respect of the land.
9. Upon perusal of the said rule, it is abundantly clear that, where subject matter is land - a sum equal to 200 times of the assessment payable in respect of the land, is to be considered for the payment of court fees and accordingly, the court fee is paid by the plaintiffs.
. The another contention of the Counsel for the revision applicants is that, the market value of the house ought to have been considered by the trial Court. The trial Court in paragraph-8 of the impugned judgment has observed that, though the defendants i.e. revision applicants herein, have stated that the market value of the disputed house 17 cra166.12
properties is Rs.2,50,000/- to 3,00,000/-, however, to that extent, no evidence is placed on record by the defendants and the trial Court has further observed that, the said point can be determined at the time of trial of the suit. Therefore, the said point can be considered by the trial Court at the time of trial of the suit.
. Though the point of limitation is specifically raised by the defendants i.e. revision applicants herein, in paragraph-8 of the written statement, the concerned Court has not considered the same, that amounts to not exercising the jurisdiction vested in the concerned Court. Therefore, to the extent of considering the point of limitation, the matter is remanded back to the concerned Court. The concerned Court to hear the parties on the point of limitation and pass appropriate orders in accordance with law. So far contention of the revision applicants 18 cra166.12
that, current market price of the land involved in nine sale deeds is concerned, in view of the Rule (2) of the Maharashtra Suit Valuation (Determination of value of land for Jurisdictional purposes) Rules, 1983, the trial Court has rightly negated the said contention and to that extent, no interference is called for. The findings in respect of other points excluding the point of limitation recorded by the trial Court are confirmed. The trial Court to consider the point of limitation and after deciding the point of limitation, proceed further to decide the main suit.
. Though the applicants have raised the point of pecuniary jurisdiction of the concerned Court to entertain the suit, in view of the notification being Maharashtra Act No. XLIV of 2011 dated 30th December 2011, pecuniary jurisdiction of the Civil Judge, Junior Division to entertain the suit 19 cra166.12
is enhanced up to Rs.5,00,000/-.
10. The Civil Revision Application is partly allowed, same stands disposed of. Rule made absolute on above terms.
sd/-
[S.S. SHINDE, J.]
sut/JULY12
Print Page
Bombay High Court
Sardarsinha S/O Gopalsinh Gour vs Swarupsinh S/O Gopalsinh Gour on 18 July, 2012
Bench: S. S. Shinde
2. This Civil Revision Application is filed challenging the judgment and order dated 4 cra166.12
28th June, 2011, passed by the Joint Civil Judge, Junior Division, Mukhed, below Exhibit-49 in Regular Civil Suit No.69 of 2009.
3. The respondents herein, are the original plaintiffs, filed Regular Civil Suit No. 69 of 2009 for partition and separate possession to the extent of area mentioned in the plaint with further prayer to hold that, 9 sale deeds mentioned in the plaint, are not binding upon the original plaintiffs. . In the said suit, the revision applicants herein, filed detailed written statement and raised points that, as per the Bombay Court Fees Act at the time of praying partition of house property, the price of the suit property should be considered on the date of filing the suit and not on the day of purchase of the suit house. The said property should be valued by the office of Sub 5 cra166.12
Registrar and the Court fees should be paid as fixed by the Sub Registrar. It is stated in the written statement that, valuation of the suit property is shown as Rs.37,500/- and the court fees paid on that basis. But, at present, price of the suit house is R.s2,50,000/- to 3,00,000/- and the applicant has not paid court fees as per the valuation of the suit house. It is further stated in the written statement that, the respondent No.1 has executed sale deed in favour of the respondent Nos. 2 to 7 and the plaintiffs have sought relief of cancellation of the said sale deeds and also to declare the sale deeds null and void and not binding upon the plaintiffs and therefore, as per Bombay Court Fees Act, on every registered sale deed the separate court fee is required to be paid. It is further stated in the written statement that, in paragraph-6 of the plaint, the plaintiffs have claimed that 9 sale deeds shall not be binding on them. After considering the total 6 cra166.12
amount of all the sale deeds, it comes to Rs. 3,35,000/-. The valuation of the suit property comes more than RS.1,00,000/-, hence, Civil Judge, Junior Division, has not jurisdiction to try the suit. It is further stated in the written statement that, period of sale deeds is 23rd December, 1994 to 4th January, 2006 and therefore, as per Indian Limitation Act, suit ought to have been filed within period of three years. If the date of filing of the civil suit is 27th July, 2009 then the suit filed by the original plaintiff Nos. 1 to 9 after the period of three years is barred by limitation and on that count alone, suit is not maintainable.
4. Upon appreciating the rival contentions, the trial Court framed preliminary issue about the jurisdiction of the said Court to try the suit. In that respect, following issue was framed ; 7 cra166.12
"Whether this Court has
jurisdiction to try the suit?".
The concerned Court held that, the suit is not barred on the ground of pecuniary jurisdiction and hence, the suit be tried as per law. Hence, this Civil Revision is filed by the original defendants challenging the order dated 28th June, 2011 passed by the Joint Civil Judge, Junior Division, Mukhed below Exhibit-49 in Regular Civil Suit No. 69 of 2009.
5. The learned Counsel appearing for the revision applicants submitted that, as per Bombay Court Fees Act, at the time of claiming partition of the house property, the price should be considered on the date of filing the suit and not on the day of purchase of the suit house. It is further submitted that, it is also necessary that, the suit property should be valued by the 8 cra166.12
office of the Sub Registrar and the court fees should be paid as fixed by the Sub Registrar but in the present case, valuation of the property is shown as Rs.37,500/- and the court fee is paid on that basis. At present, the price of the suit house is Rs.2,5000/- to 3,00,000/- and the applicant has not paid court fees as per valuation of the suit house. It is further submitted that, as per Bombay Court Fees Act, on every registered sale deed, separate court fee is required to be paid on the consideration amount of the sale deed. However, the plaintiffs have not considered the court fees separately on each registered sale deed, therefore, suit itself deserves to be dismissed. It is further submitted that, the plaintiffs have claimed that, nine sale deeds executed between the respondents inter se are not binding on the plaintiffs. The total amount of consideration of the sale deeds come to Rs.10,35,000/- and therefore, 9 cra166.12
valuation of the suit property exceeds more than Rs.1,00,000/-, hence, Civil Judge, Junior Division, has no jurisdiction to entertain the suit. It is further submitted that, valuation of the suit property comes to Rs.10,35,000/- and therefore, the suit should have been filed before the Civil Judge, Senior Division, Kandhar. It is further submitted that, the suit is not maintainable before the Civil Judge, Junior Division, Mukhed and therefore, on that count alone, the suit filed by the respondents ought to have been dismissed or returned back to the original plaintiffs to present before appropriate Court. It is submitted that, original plaintiffs have claimed that, the said nine sale deeds are not binding upon them. The period of sale deed is 23rd December, 1993 to 4th January, 2006. Therefore, as per Indian Limitation Act,the suit ought to have been filed within period of three years. If the date of filing civil 10 cra166.12
suit is 27th July, 2009 then the suit filed by the original plaintiff Nos. 1 to 9 after period of three years is barred by limitation and on that count alone, the suit is not maintainable. It is further submitted that, original plaintiff Nos. 1 to 9 have filed suit against the defendant No.1 only to harass and for cancellation of the sale deeds. However, to avoid payment of the court fees, the plaintiffs have prayed that, it should be declared that, the sale deeds are not binding upon the plaintiffs. It is further submitted that, the plaintiffs have not included all the properties in common hotch-potch though the suit is filed for partition and separate possession. It is further submitted that, how the plaintiffs are related with the suit property, is not mentioned in the suit. Therefore, the suit suffers from specific mentions about which property is ancestral property, who is original owner of the property, how the 11 cra166.12
entries are effected and entitlement of the plaintiffs in the suit property.
. It is submitted that, in the impugned judgment, the concerned Court has considered the provisions of Rule 2 of the Maharashtra Suit Valuation (determination of value of land for jurisdictional purposes) Rules, 1983, however, the concerned Court has not given proper reasoning on the aspect of the claim of the plaintiffs that, nine sale deeds are not binding upon them. If the valuation of 9 sale deeds is considered, it comes to Rs.10,35,000/- which is admittedly more than Rs.1,00,000/- and therefore, Civil Judge, Junior Division has no jurisdiction to entertain the said suit.
6. On the other hand, the learned Counsel appearing for the respondents submits that, proper court fee is paid by the original plaintiffs. The plaintiffs have not 12 cra166.12
asked for cancellation of the sale deeds, however, the relief is sought that, the sale deeds are not binding upon the plaintiffs. The learned Counsel further submitted that, the trial Court has recorded the reasons in support of its order, relying upon Rule (2) of the Maharashtra Suit Valuation (Determination of value of land for Jurisdictional purposes) Rules, 1983 and therefore, this Court may not interfere in the impugned judgment. In support of his contention, the Counsel appearing for the respondents pressed into service reported judgment of the Calcutta High Court in the case of Sm. Golapmoni Ray and others vs. Nanigopal Roy and others [AIR 1980 Calcutta 74]. Relying upon the said judgment, the Counsel for the respondents submits that, this writ petition deserves to be dismissed.
7. I have given due consideration to the rival submissions. Three-fold contentions 13 cra166.12
are raised by the Counsel for the revision applicants. Firstly, the suit filed by the plaintiffs with prayer that, the sale deeds are not binding upon the plaintiffs, is not filed within limitation. Secondly, since the relief of cancellation of the sale deeds is sought, the plaintiffs ought to have paid court fees on the market value of the said properties which is subject matter of the 9 sale deeds and thirdly, while considering the valuation of the house, the current market price of the said house is not taken into consideration by the concerned Court. . The first contention of the Counsel appearing for the revision applicants that, the suit filed by the original plaintiffs i.e. respondents herein, was not within limitation, has some substance. Upon careful perusal of the impugned judgment and order, it is abundantly clear that, the trial Court has not considered the point of limitation. 14 cra166.12
When the specific point was raised by the revision applicants herein, i.e. original defendant, in written statement in paragraph-8 that, 9 sale deeds are executed from the period 23rd December, 1994 to 4th January, 2006, and the suit is filed by the plaintiffs on 27th July, 2009 and in view of the provisions of the Limitation Act for filing the suit with prayer that, sale deeds are not binding upon the plaintiffs, three years period is prescribed. Therefore, since the trial Court has not considered the point of limitation, and since the point of limitation is a mixed question of fact and law, it would be appropriate and in the interest of justice to direct the trial Court to consider the point of limitation afresh.
8. The second point raised by the revision applicants that, while considering the price of the suit land, which is the subject matter of nine sale deeds, the 15 cra166.12
concerned Court should have taken into consideration the current market price of the suit land which is suit matter of nine sale deeds are concerned, said contention is devoid of any merits. In respect of nine sale deeds, the plaintiffs have sought limited relief that those sale deeds are not binding upon them. The plaintiffs have not prayed that, the sale deeds should be cancelled. It is the specific case of the plaintiffs that, they are not party to the said sale deeds and therefore, it should be declared that,those sale deeds are not binding upon the them. The trial Court has rightly pressed into service Rule (2) of the Maharashtra Suit Valuation (Determination of value of land for Jurisdictional purposes ) Rules, 1983 for the purpose of determining the value of the property, which reads thus : a) Where the subject is house or garden- according to the market value of the house or 16 cra166.12
garden as the case may be ;
b) Where subject matter is land - a sum equal to 200 times of the assessment payable in respect of the land.
9. Upon perusal of the said rule, it is abundantly clear that, where subject matter is land - a sum equal to 200 times of the assessment payable in respect of the land, is to be considered for the payment of court fees and accordingly, the court fee is paid by the plaintiffs.
. The another contention of the Counsel for the revision applicants is that, the market value of the house ought to have been considered by the trial Court. The trial Court in paragraph-8 of the impugned judgment has observed that, though the defendants i.e. revision applicants herein, have stated that the market value of the disputed house 17 cra166.12
properties is Rs.2,50,000/- to 3,00,000/-, however, to that extent, no evidence is placed on record by the defendants and the trial Court has further observed that, the said point can be determined at the time of trial of the suit. Therefore, the said point can be considered by the trial Court at the time of trial of the suit.
. Though the point of limitation is specifically raised by the defendants i.e. revision applicants herein, in paragraph-8 of the written statement, the concerned Court has not considered the same, that amounts to not exercising the jurisdiction vested in the concerned Court. Therefore, to the extent of considering the point of limitation, the matter is remanded back to the concerned Court. The concerned Court to hear the parties on the point of limitation and pass appropriate orders in accordance with law. So far contention of the revision applicants 18 cra166.12
that, current market price of the land involved in nine sale deeds is concerned, in view of the Rule (2) of the Maharashtra Suit Valuation (Determination of value of land for Jurisdictional purposes) Rules, 1983, the trial Court has rightly negated the said contention and to that extent, no interference is called for. The findings in respect of other points excluding the point of limitation recorded by the trial Court are confirmed. The trial Court to consider the point of limitation and after deciding the point of limitation, proceed further to decide the main suit.
. Though the applicants have raised the point of pecuniary jurisdiction of the concerned Court to entertain the suit, in view of the notification being Maharashtra Act No. XLIV of 2011 dated 30th December 2011, pecuniary jurisdiction of the Civil Judge, Junior Division to entertain the suit 19 cra166.12
is enhanced up to Rs.5,00,000/-.
10. The Civil Revision Application is partly allowed, same stands disposed of. Rule made absolute on above terms.
sd/-
[S.S. SHINDE, J.]
sut/JULY12
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