1. The challenge in this writ petition filed under Article 227 of the Constitution of India is to order dated 19.04.2010 passed below Ex. 69 in RCS No. 163/2009 by the Court of Civil Judge, Junior Division, Parseoni, District – Nagpur, rejecting the objection to court fee and valuation of suit for declaration of title on the basis of its perfecting by adverse possession. This Court has issued notice for final disposal. Considering the nature of controversy, I have heard both learned Counsel finally by issuing Rule and making it returnable forthwith.

2. After coming to know that defendants No. 1 to 5 against whom the suit was filed have on 08.09.2009 sold the disputed property to defendant no. 6, plaintiffs (respondents before me) amended their plaint and added that purchase as defendant 6. They also added a relief that said sale deed should be declared as null, void and be cancelled. After said amendment, the defendants moved application at Exh. 69 contending that as sale consideration was Rs. 2,37,500/-, the suit needed to be valued in accordance with S.6(iv)(ha) and S.6(iv) (diii) proviso of the Bombay Court Fees Act. They urged that ad valorem court fee in full was accordingly had become payable. The Trial Court rejected that objection by impugned order.

3. Point raised is whether in a Suit filed for declaration of ownership because of the adverse possession, upon amendment to declare a lis-pendence sale-deed executed by the defendant therein bad and not binding on him, the plaintiff has to pay court fee under S.6(iv)(ha) of the Bombay Court Fees Act, 1959, (hereinafter referred to as the Act). Further as he is claiming restoration of possession, he has to pay full ad valorem fees calculated on sale consideration of Rs.2,37,500/-

4. Advocate Naidu for the petitioners defendants including subsequent purchaser argues that in the light of an express stipulation contained in S.6(iv)(ha), the view of the Trial Court in impugned order that no separate court fee is payable on such reliefs is unsustainable. According to him, the judgment of this Court Khanderao Bhujangrao Babar vs. Bharatbai Shrimant Gomsale reported at 2009 (3) ALL MR 568 overlooks this express arrangement in statute and does not lay down correct position. Trial Court has not considered the provisions of S.6 (iv) (d) (iii) at all.

5. Learned Advocate Chikhale for respondents No. 2 to 15 plaintiffs states that the suit is for declaration that petitioner has ceased to be the owner and title stands vested in plaintiff due to adverse possession. As suit is a title suit, the transfer of suit property during its pendency is not binding on plaintiff and also he is not party to that transaction. The sale deed therefore need not have been challenged also. The relief that sale is not binding on plaintiff is subordinate to main relief in the Suit as filed. As suit is valued correctly and proper court fee is paid on main relief, no separate court fee is payable on secondary relief & cause. He further states that court fee as paid is sufficient to cover court fee even on relief of possession subsequently added. The judgment of this Court Khanderao Bhujangrao Babar vs. Bharatbai Shrimant Gomsale (supra) is pressed into service by him.

6. This Court in judgment in Khanderao Bhujangrao Babar vs. Bharatbai Shrimant Gomsale (supra) had an occasion to consider the relevant provisions in the light of the precedents. In that matter, Respondent No.1 in High Court i.e. original plaintiff instituted the suit claiming specific performance of agreement & recovery of possession. Plaintiff in the suit also claimed relief to the effect that the registered sale-deeds bearing Nos.1508 and 1509 executed on 15.09.1997 be adjudged as ineffective and inoperative against the plaintiff. She stated in the plaint that the property in dispute has been subsequently transferred by original defendant No.1 in favour of other defendants. Being a lady, as per the policy of the State Government in re