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2012 Supreme(Bom) 1297
In the High Court of Bombay at Aurangabad
S.S. SHINDE, J
Sardarsinha s/o Gopalsinh Gour & Others
Versus
Swarupsinh s/o Gopalsinh Gour & Others
CIVIL REVISION APPLICATION NO.166 OF 2012
Decided on : 18-07-2012
For the Applicants :K.M. Nagarkar, Advocate.
For the Respondents:R1 to R9, P.K. Deshmukh, Advocate.
Headnote:LIMITATION ACT, 1963 - Article 54 - Suit for declaration.
Where issue of limitation not considered by trial Court in a suit for declaration that sale deed is not binding therefore trial Court directed to reconsider issue of limitation afresh. - Three-fold contentions are raised by the counsel for the revision applicants. Firstly, the suit filed by the plaintiffs with prayer that, the sale deeds are not binding upon the plaintiffs, is not filed within limitation. Secondly, since the relief of cancellation of the sale deeds is sought, the plaintiffs ought to have paid court-fees on the market value of the said properties which is subject-matter of the 9 sale deeds and thirdly, while considering the valuation of the house, the current market price of the said house is not taken into consideration by the concerned Court.
The suit filed by the original plaintiffs i.e. respondents herein, was not within limitation, has some substance. Upon careful perusal of the impugned judgment and order, it is abundantly clear that, the trial Court has not considered the point of limitation. When the specific point was raised by the revision applicants herein, i.e. original defendant, in written statement in paragraph-8 that, 9 sale deeds are executed from the period 23rd December, 1994 to 4th January, 2006, and the suit is filed by the plaintiffs on 27th July, 2009 and in view of the provisions of the Limitation Act for filing the suit with prayer that, sale deeds are not binding upon the plaintiffs, three years period is prescribed. Therefore, since the trial Court has not considered the point of limitation, and since the point of limitation is a mixed question of fact and law, it would be appropriate and in the interest of justice to direct the trial Court to consider the point of limitation afresh.
Maharashtra Suit Valuation (Determination of Value of Land for Jurisdictional Purposes) Rules, 1983 - Rule 2 - Court-fee.
Since in a suit for declaration that sale deeds are not binding, cancellation of sale deeds not prayed hence for determining value of property, Rule 2 of Rules, 1983 rightly pressed into service. - The second point raised by the revision applicants that, while considering the price of the suit land, which is the subject-matter of nine sale deeds, the concerned Court should have taken into consideration the current market price of the suit land which is suit matter of nine sale deeds are concerned, said contention is devoid of any merits. In respect of nine sale deeds, the plaintiffs have sought limited relief that those sale deeds are not binding upon them. The plaintiffs have not prayed that, the sale deeds should be cancelled. It is the specific case of the plaintiffs that, they are not party to the said sale deeds and therefore, it should be declared that, those sale deeds are not binding upon the them. The trial Court has rightly pressed into service Rule (2) of the Maharashtra Suit Valuation (Determination of value of land for Jurisdictional purposes) Rules, 1983 for the purpose of determining the value of the property, which reads thus :
(a) Where the subject is house or garden - according to the market value of the house or garden as the case may be;
(b) Where subject-matter is land - a sum equal to 200 times of the assessment payable in respect of the land.
Bombay Court Fees Act, 1959 - Section 6(iv)(j) - Payment of court-fee - Where in a suit for declaration of sale deeds null and void, defendants raised plea that market value of house ought to be considered by trial Court but not produced any evidence about market value of house therefore said point can be determined at time of trial of suit.
LIMITATION ACT, 1963 - Article 54 - Limitation for suit for declaration - Since point of limitation is a mixed question of fact and law hence trial Court ought to have consider point of limitation while entertaining suit for declaration.
Rule. Rule made returnable forthwith.
With the consent of parties heard finally.
2. This Civil Revision Application is filed challenging the judgment and order dated 28th June, 2011, passed by the Joint Civil Judge, Junior Division, Mukhed, below Exhibit-49 in Regular Civil Suit No.69 of 2009.
3. The respondents herein, are the original plaintiffs, filed Regular Civil Suit No. 69 of 2009 for partition and separate possession to the extent of area mentioned in the plaint with further prayer to hold that, 9 sale deeds mentioned in the plaint, are not binding upon the original plaintiffs.
In the said suit, the revision applicants herein, filed detailed written statement and raised points that, as per the Bombay Court Fees Act at the time of praying partition of house property, the price of the suit property should be considered on the date of filing the suit and not on the day of purchase of the suit house. The said property should be valued by the office of Sub-Registrar and the Court fees should be paid as fixed by the Sub Registrar. It is stated in the written statement that, valuation of the suit property is shown as Rs.37,500/- and the court fees paid on that basis. But, at present, price of the suit house is R.s2,50,000/- to 3,00,000/-and the applicant has not paid court fees as per the valuation of the suit house. It is further stated in the written statement that, the respondent No.1 has executed sale deed in favour of the respondent Nos. 2 to 7 and the plaintiffs have sought relief of cancellation of the said sale deeds and also to declare the sale deeds null and void and not binding upon the plaintiffs and therefore, as per Bombay Court Fees Act, on every registered sale deed the separate court fee is required to be paid. It is further stated in the written statement that, in paragraph-6 of the plaint, the plaintiffs have claimed that 9 sale deeds shall not be binding on them. After considering the total amount of all the sale deeds, it comes to Rs. 3,35,000/-. The valuation of the suit property comes more than RS.1,00,000/-, hence, Civil Judge, Junior Division, has not jurisdiction to try the suit. It is further stated in the written statement that, period of sale deeds is 23rd December, 1994 to 4th January, 2006 and therefore, as per Indian Limitation Act, suit ought to have been filed within period of three years. If the date of filing of the civil suit is 27th July, 2009 then the suit filed by the original plaintiff Nos. 1 to 9 after the period of three years is barred by limitation and on that count alone, suit is not maintainable.
4. Upon appreciating the rival contentions, the trial Court framed preliminary issue about the jurisdiction of the said Court to try the suit. In that respect, following issue was framed;-
"Whether this Court has jurisdiction to try the suit?".
The concerned Court held that, the suit is not barred on the ground of pecuniary jurisdiction and hence, the suit be tried as per law. Hence, this Civil Revision is filed by the original defendants challenging the order dated 28th June, 2011 passed by the Joint Civil Judge, Junior Division, Mukhed below Exhibit-49 in Regular Civil Suit No. 69 of 2009.
5. The learned Counsel appearing for the revision applicants submitted that, as per Bombay Court Fees Act, at the time of claiming partition of the house property, the price should be considered on the date of filing the suit and not on the day of purchase of the suit house. It is further submitted that, it is also necessary that, the suit property should be valued by the office of the Sub Registrar and the court fees should be paid as fixed by the Sub Registrar but in the present case, valuation of the property is shown as Rs.37,500/- and the court fee is paid on that basis. At present, the price of the suit house is Rs.2,5000/- to 3,00,000/-and the applicant has not paid court fees as per valuation of the suit house. It is further submitted that, as per Bombay Court Fees Act, on every r
