1. Heard learned Counsel for the parties. Perused the record.

2. To state in brief, the plaintiff, who is respondent No.1 in the present Appeal, claims to be nephew of Dr. Gopal Ayengar, who was the member of The Mysore Co-operative Housing Society, respondent No.2. As a member, the plot No.73 was allotted to Dr. Gopal Ayengar by the Society on which he had constructed a bungalow. Admittedly, Dr. Gopal Ayengar died in September 1992 leaving behind only his widow Mrs. Rajalakshmi. She also died in the year 2002. The present appellant No.1/defendant No.5 claims to be a distant nephew of Rajalakshmi Ayengar. Appellant No.2/defendangt No.6 claims to be the power of attorney holder for the defendant No.5 who is residing in U.S.A. The plaintiff claims to be in possession of the said bungalow and also claims to be nephew and the legal heir of Dr. Gopal Ayengar. He filed BCCC Suit No.2023 of 2005 seeking several reliefs. The appellants/defendants Nos. 5 and 6 raised the preliminary objection about the maintainability of the suit on two grounds. Firstly, that the suit is not tenable before the City Civil Court and secondly, the suit is not valued properly for the purpose of pecuniary jurisdiction and Court fees. According to them, The market value of the property is more than Rs.60 lakhs. and, therefore, the City Civil Court does not have jurisdiction to entertain the suit. After hearing the parties, the learned trial Court rejected the contention of defendants Nos. 5 and 6 and held that the suit is not for possession but only for declaration of lawful possession and other consequential reliefs and therefore it is within the jurisdiction of the City Civil Court and is properly valued.

3. The relevant prayers made in the plaint are as follows :-

"(a) This Hon’ble Court be pleased to declare that Plaintiff is in continuous and peaceful possession of the plot of land bearing No.73 admeasuring 60 x 90 - sq. ft. with bungalow (1818 sq. ft. built-up) thereon at 73, Mysore Colony, Mahul Road, Chembur, Mumbai - 74 as a Member of the society and as the heir of original allottee and member late Dr. A.R. Gopal-Ayengar."

"(c) That the Honourable Court be pleased to declare that alleged will in respect of transfer of property in respect of plot of land bearing No.73 admeassuring 60 x 90 - sq. ft. with bungalow 1818 sq. feet (built-up) thereon at 73, Mysore Colony, Mahul Road, Chembur, Mumbai -74 is illegal improper and bad in law and not binding upon Plaintiff."

"(e) That the Defendant No.1 to 3 and 5 to 8 their agents and servants be restrained by order and permanent injunction from interfering with or disturbing the possession of the Plaintiff and the members of family in respect of the peaceful possession and enjoyment of the plot of land bearing No.73 admeasuring 60 x 90 - sq. ft. with bungalow thereon at 73, Mysore Colony, Mahul Road, Chembur, Mumbai-74."

4. The plaintiff has valued the suit under Section 6(iv)(j) of the Bombay Court-fees Act, 1959 on the ground that the declaration sought by him and the subject matter in the dispute is not susceptible of monetary evaluation and there is no specific provision about the payment of Court fee in respect of such suits. On the other hand, the learned Counsel for the appellants contended that the suit squarely falls under Section 6(iv)(d) of the Bombay Court-fees Act. The relief sought in the suit is in the nature of declaration of being legal heir of deceased Dr. Gopal Ayengar and, therefore, the suit will lie in the High Court and not in the City Civil Court.

5. If prayer clause (a) is carefully read, it clearly shows that plaintiff wants a declaration that he is in continuous and peaceful possession of the suit property as a member of the Society and as an heir of original allottee and member late Dr. A.R.Gopal Ayengar. Therefore, from this it is clear that he does not seek mere declaration that he is in possession of the property nor he seeks a relief that he should not be dispossessed oth