In a suit for declaration of ownership or title with consequential relief of possession, court fees are payable on the full market value of the property.

JUDGMENT-This is plaintiffs' appeal from Order of the learned Judge of the City Civil Court directing their plaint to be returned to the proper Court under Order 7, Rule 10 of the Civil Procedure Code.

2. A few facts that indicate the nature of the dispute may be noted. Originally the suit was filed by one Laxmibai widow of Anandrao Dake and her son Gajanan Anandrao Dake as plaintiffs Nos. 1 and 2. Their case is that one Anandrao, the husband of original plaintiff No. 1 and father of original plaintiff No. 2, owned a Hair Cutting Saloon at Bombay Central and the tenancy in respect of the premises stood in the name of Anandrao. After the death of Anandrao the entire bus mess including the tenancy right was inherited by Laxmibai and her son Gajanan. The two original plaintiffs had executed a document of conducting in favour of one K. Ramdas for a period of six years some time in the year 1952. While that contract was still running both of them executed an assignment-deed or sale-deed dated 1st March 1957 for a total consideration of Rs. 7,000. All the stock-in-trade of the running business along with the tenancy right, good-will etc. were sought to be transferred under this document and possession was delivered to the defendants. From the date of alienation in their favour, the defendants began to recover the royalty for conducting the shop from K. Ramdas.

3. Some time at the end of 1960 the original plaintiffs began to claim that the document of assignment was in fact a mere loan transaction and that the loan was actually repaid in the form of recoveries and royalty from K. Ramdas. The defendants then came out with a reply that they were the owners of the shop and the plaintiffs had nothing to do with it. When this claim was heard by them, the plaintiffs took a search of the record and obtained a copy of the sale-deed and realised that they were defrauded by making them execute a document of sale. Hence on 30th June 1961 the present suit was filed.

4. In this suit they primarily want that the two documents of assignment deed as well as declaration-deed respectively dated 1st of March 1957 and 26th of February 1957 be adjudged void or voidable. They should be produced for cancellation and accordingly the Registrar be informed of the cancellation. They further want as a consequential relief that possession be handed over to the plaintiffs.

5. In such a suit a technical objection to the maintainability of the suit in the City Civil Court and the payment of court· fees were raised. The Court, therefore, heard that question as a preliminary issue. According to the defendants this was a suit where possession of immovable property was sought and that court-fees should have been paid on the market value of the premises in question. That market value has already been assessed by the plaintiffs at Rs. 35,000 in the plaint. Not only court fees should have been recovered on Rs. 35,000 from the plaintiffs but the suit ought to be valued at Rs. 35.000 which is beyond the pecuniary jurisdiction of the City Civil Court. In the circumstances the plaint ought to be returned for presentation to proper Court.

6. After hearing the Counsel on either side and after taking into consideration the pleadings in the plaint and the documents, which were sought to be set aside, the learned trial Judge felt that the proper valuation of this suit ought to have been done under section 6 (iv) (ha) of the Bombay Court Fees Act, 1959. In that view of the matter, he directed the plaint to be returned to the proper Court. Being aggrieved, the plaintiffs have filed this appeal. It may be noted that in the mean white Laxmibai died and original plaintiff No.2 Gajanan has stepped in her shoes a" original plaintiff' No. 1 also. He therefore appears in the representative capacity as original plaintiff No. 1 and in his own right as plaintiff No.2.

7. I would at once note that the learned Counsel Shri Parekh does not support the conclusion of the trial Court that the provi

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