High Court

Legal Reasoning

1 cra 86.2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL REVISION APPLICATION NO.86 OF 20231.Sham s/o Damodar Renavikar,age 61 yrs, Occ Business,R/o Lal Taki Road, Ahmednagar.2.Sushma Sham Renavikar,age 59 yrs, Occ. And r/o. As above.3.Akshay Sham Renavikar,age 31 yrs, Occ. And r/o as above.Applicants.(Orig deft 8 to 10)Versus1.Dr. Abdul Sattar s/o Mohd Salar,age 73 yrs, Occ. Medical Practitioner,R/o. Bungalow No.164, N-3,Cidco, Near Ajaydeep Complex,Aurangabad.2.Syed Nashir Shamsher Ali,age 46 yrs, Occ. Agri,R/o. Supa, Tq. Parner,District Ahmednagar.3.Sachin Tukaram Jadhav,age 43 yrs, Occ. Agril,R/o. Kings Gate, Ahmednagar.4.Sanjay s/o Bhagwan Budhwant,age 47 yrs, Occ. Agri and Business,R/o S.T. Colony, Surya Nagar,Aurangabad Road, Ahmednagar.5.Ravindra Babasaheb Pisore,age 42 yrs, Occ. Agri and Business,R/o. 101, Anand Nagar Society,Savedi, Ahmednagar, Tq. & Dist. Ahmednagar. 2 cra 86.2023.odt6.Shrihari Constructions Partner,Daivshala Shivdas Doke,age 40 yrs, Occ. Business,R/o Pipeline Road, Savedi,Ahmednagar.7.Shrihari Constructions Partner,Sow. Warsha Sanjay Kandekar,age 38 yrs, Occ. Business,R/o as above.8.The Talathi, Wadgaon Gupta,Saza Wadgaon Gupta, Tq. AndDistrict Ahmednagar.9.The Circle Officer,Savedi, Tq. Ahmednagar,District Ahmednagar.Respondents.(R-1 orig plaintiff, 2 to 7are orig deft.2to7 and resp 8,9 orig deft 11 & 12.)…Mr. S.S. Thombre, advocate for applicants.Mr. Y.M. Khan, advocate for respondent no.1.Mr. S.V. Jadhavar advocate for respondent nos. 2 to 5.Mr. S.R. Andhale advocate for respondent nos.6 and 7....CORAM : S. G. CHAPALGAONKAR, J. Date : 25th November, 2024.…ORDER :-1.The applicants/original defendants no.8 to 10assails the order dated 4.2.2023 passed by 2nd Jt. Civil JudgeS.D. Ahmednagar in Special Civil Suit No.89 of 2020 by whichthe applicants prayer for rejection of the plaint under 3 cra 86.2023.odtorder VII Rule 11 of the Civil Procedure Code has beenrejected.2.Mr. Siddheshwar Thombre, learned advocateappearing for the applicants submits that respondent no.1instituted Special Civil Suit no.89 of 2020 claiming relief ofdeclaration and injunction. It is a case of the plaintiff thatgeneral power of attorney dated 21.2.2011 has been fabricatedby defendant no.1 with aid of third person. He got knowledgeof execution of the sale deed in respect of his land gat no.661situated at Wadgaon Gupta on the basis of aforesaid power ofattorney. The plaintiff therefore claims declaration that sale-deed bearing day book no.1276 dated 23.2.2011 is null andvoid and not binding to his right. The plaintiff has also raisedchallenge to the mutation entry and consequential sale-deedsexecuted by the defendant no.2 in favour of defendant nos. 3to 5 and further sale-deed executed by defendant nos.3 to 5 infavour of defendant nos.6 and 7. The plaintiff has also claimedthe relief of perpetual injunction against the defendants fromcausing interference in his possession over the suit property. 4 cra 86.2023.odt3.Mr. Thombre would submit that initially presentapplicants were not party to the suit. They have been broughton record as per the amendment under order dated 9.11.2021,passed below exhibit 35. After appearance of applicants beforethe trial court they filed application under order VII rule 11 ofthe CPC seeking rejection of plaint and pointed out thatapplicants purchased suit property on 11.7.2016 forconsideration of Rs.1,92,00,000/-. Present market value of suitproperty is more than 2,38,07,724/-. The suit is undervalued.However, Trial Court erroneously rejected the application videorder dated 4.2.2023. Mr. Thombre in support of hiscontentions seeks to rely upon judgment of this Court in caseof Kishorbhai Premchand Shah Vs. Hirji Bhojraj and sonsKutchi Oswal Jain Chhatralay Trust and others reported in2014 (2) Mh.L.J. 187.4.Mr. Thombre would further submit that plaintiffhas cunningly suppressed market value of the land, although,he is seeking declaration as regards to sale-deed of applicants.The suit is not valued as per market value of suit property atthe time of institution of suit. He would further submit thatinspite of specific objection of defendants on the point of 5 cra 86.2023.odtvaluation of suit, plaintiff failed to rectify defect andappropriately valued suit for the purpose of court fees andjurisdiction. Consequently, the trial court ought to haveexercised the jurisdiction under order VII Rule 11 of the CPCand suit ought to have been rejected.5.Per contra, Mr. Y.M. Khan, learned advocateappearing for the respondent no.1/plaintiff would submit thatobjection as regards to valuation of the suit was previouslyraised in the scrutiny-sheet by the Superintendent of the Court.The Court passed order for correction of the valuation andremoval of the objection. Thereafter, suit was appropriatelyvalued and requisite court fees has been paid. Consequently,vide order dated 11.6.2020 passed by the Trial Court, the suithas been registered and numbered. He would submit thatdefendant nos.1 and 2 had previously raised similar objectionby filing application below exhibit-38 in Suit. The Court afterconsidering rival submissions approved correctness ofvaluation of suit and consequential payment of Court Fees interms of section 6 (iv) and (ha) of the Maharashtra Court FeesAct. Therefore, subsequent application filed by defendant nos.3 to 8 has been rightly dismissed. 6 cra 86.2023.odt6.To counter the aforesaid submissions, Mr.Thombre would submit that objection raised by defendantnos.1 and 2 vide application below exhibit-38 has been dealtwith and decided on 28.10.2020 before impleadment. Hewould submit that sale-deeds of defendant nos.8 to 10 andmarket value of the suit land was not before the Court, theCourt erroneously approved valuation of suit based onconsideration shown in sale-deed of 2011. If the suit isinstituted in the year 2020, it was for the plaintiff to pay courtfees as per the market value as on date of filing of the suit.Therefore, according to him, suit is liable to be dealt withunder Order VII Rule 11 (a and b) of the Code.7.Having considered the submissions advanced andafter going through the relevant record, it can be observed thatrespondent no.1 instituted suit seeking relief that the sale-deedday book no.898 of 2011 dated 21.2.2011 executed by thedefendant no.1 in favour of defendant no.2 on the basis ofalleged forged general power of attorney depictingauthorization by plaintiff to defendant-Syed Nasir to transferland of his ownership. According to the plaintiff, in the year2020, it was revealed to him that false, bogus and fabricated 7 cra 86.2023.odtGPA in his name has been prepared by defendant no.1 and thesale-deed has been executed in name of defendant no.1. Theplaintiff further contend that lateron defendant no.2transferred suit land in favour of defendant nos.3 to 5 underregistered sale deed dated 13.3.2013. The defendant nos.3 to5 transferred the same land in favour of defendant nos.6 to 7under registered sale-deed dated 16.1.2014 and lastly the samehas been transferred in favour of defendant nos.8 to 12. Theplaintiff therefore seeks relief of declaration that power ofattorney dated 21.2.2011 registered vide day book no.898 of2011 is fake document and also seeks declaration that saledeed dated 23.2.2011 is not binding on his right. The plaintiffhas also claimed consequential declaration in respect of furthersale-deeds.8.Apparently, the suit is susceptible to monetaryevaluation. If the plaintiff is claiming declaration, he isrequired to pay Court fees to the extent of ½ of the advaloremfees. It is not disputed before this Court that clause no.6 (iv)(ha) of the Court Fees Act is applicable in the present case.9.This Court in case of Niraj Narendra Walle Vs.Smt. Vijaya w/o Narendra Valle relying upon the proposition of 8 cra 86.2023.odtlaw in case of Suhrid Singh @ Sardool Singh Vs. Randhir Singhand others observed that where the prayer for cancellation ordeclaration in regard to deed of transfer or conveyance is madeby party to the sale-deed, who wants to avoid the same, thecourt fees would be chargeable differently. However, when theprayer is made by third party i.e. non-executant of the deed toavoid the sale-deed for declaration that same is invalid or voidand not binding upon him, he has merely to pay court fees interms of section 6(iv)(ha) of the Maharashtra Court Fees Actonly on the first sale deed and not on the consequential sale-deeds.10.In the present case, the plaintiff has revalued thesuit in pursuance to objection raised by the Superintendent.Thereafter, as per the Courts order dated 10.6.2020 he paidcourt fees on sale consideration amount of first sale-deed.Thereafter, suit has been registered. The corollary of aforesaiddiscussion reveal that suit is properly valued. The objection asregards to valuation of suit has been appropriately dealt with.Even, objection on the same issue has been previously dealtwith by the trial court while deciding exhibit-38 at the instanceof defendant nos.1 and 2. Merely because defendant nos.8 to 9 cra 86.2023.odt10 are later on added, there was no reason to again deal andentertain same objection. Although defendants are claimingtheir right under sale-deed of 2016 which show considerationamount as Rs.1,92,00,000/- the plaintiff has rightly valued thesuit based on valuation of property in first sale-deed of 2011 bywhich plaintiff can be said to be aggrieved. If the sale-deed ofthe year 2011 is declared as null and void or not binding onright of the plaintiff, no title would pass to subsequentpurchasers. The plaintiff can simply ignore such sale-deeds.11.Although, Mr. Thombre submits that valuation ofthe property as on date of filing of the suit has to beconsidered, in absence of prayer for recovery of possession,such arguments cannot be accepted. The plaintiff has madeprayer of declaration as regards to sale-deeds being invalid andconsequential prayer for perpetual injunction. Therefore, suitappears to be properly valued. In that view of the matter, nofault can be found in the impugned order. Civil revisionapplication stands dismissed. No costs. ( S. G. CHAPALGAONKAR ) JUDGE...aaa/-