The main legal point established in the judgment is the interpretation of the provisions of the Bombay Court Fees Act, 1959, specifically regarding the valuation of the suit and the payment of court fee as per the Act.

1. With the consent of Shri Khapre, learned counsel for the petitioner and Shri Deshpande, learned counsel for respondents No. 7, 8, 10 & 11, writ petition is heard finally by making rule returnable forthwith.

2. The petitioner – plaintiff has challenged the order dated 02.09.2009 passed below Exh. 93 by Civil Judge, Senior Division, Khamgaon, upholding the objection to the valuation of Court Fee raised by the respondents and directing him to pay deficit court fee stamp as per provisions of Section 6(iv) (ha) and 6(iv)(d) of the Bombay Court Fees Act, 1959, (hereinafter referred to as the Act).

3. Shri Khapre, learned counsel has contended that the objection raised before the trial Court is misconceived. The suit as valued at Rs.4,60,000/- is proper and provisions of Section 6(iv)(d) have been satisfied in the matter. The plaintiff has sought 1/4th share after the partition of agricultural land and its possession. The relief of cancellation of sale deed and declaration and ownership is in relation to instrument to which he is not a party. The direction to pay court fee on 1/4th share of plaintiff on market valuation is, therefore, unsustainable.

4. According to Shri Deshpande, learned counsel, the order does not call for any interference. He has invited attention to the objection as raised and also to plaint.

5. Both the counsel have relied upon several judgments and I find it convenient to refer to them as and when occasion arises.

6. The plaint as filed shows that he has sought a relief of cancellation of sale deed dated 25.06.1998 with further relief that it should be declared illegal as defendant No. 1 had no right to execute it in favour of defendants No. 7 to 11. Thus, the petitioner – plaintiff is not party to that sale deed. The further relief sought is as the petitioner is by birth owner of suit field, her 1/4th share in it should be declared (accepted) with direction to separate it by effecting partition. She has also prayed for its possession and for enquiry into mesne profits.

7. The sale deed dated 25.06.1998 is for Rs.4,60,000/- and it describes the property sold as part of an agricultural field having Survey No. 89/1A. The purchasers in that sale deed are defendants No. 7 to 11 and they have filed application under Order 7, Rule 11 of Civil Procedure Code, stating that the suit ought to have been valued as per market value of the property at the time of filing of suit. They have pointed out that its market value then was more than Rs.40 lakh. The plaintiff objected to that application pointing out that issues are already framed on 06.06.2005 itself and the defendants have been postponing adjudication on one count or the other. They claimed that application has been filed after four years of framing of issues only to harass them. He relied upon valuation declared in sale deed to substantiate the valuation undertaken in the suit.

8. In the impugned order, the trial Court has found that because of prayer for declaration of sale deed as illegal, Section 6(iv)(ha) of the Act gets attracted for relief of declaration of 1/4th share and for possession the provisions of Section 6(iv)(d) of the Act get attracted. As relief of possession is claimed, full ad valorem court fee is payable. Because of these findings, it has issued the impugned direction.

9. The perusal of provisions of Section 6(iv)(d) of the Act shows that when suit filed is for declaration in respect of ownership of any immoveable property, 1/4th of ad valorem fee leviable for a suit for possession on the basis of title of the subject matter is required to be paid. Its last proviso states that when in addition any consequential relief other than possession is sought, such amount of court fee has to be one half of ad valorem fee and when such consequential relief also includes the relief of possession, the amount of fee has to be full ad valorem fee. This Section necessitates reference to a provision prescribing court fee for a suit for possession