JUDGMENT :

Rule. Rule made returnable forthwith. With the consent of the parties taken up for final hearing at the admission stage.

2. This writ petition is preferred by the petitioner, being aggrieved by the judgment and order passed by the learned 2nd C.J.S.D., Aurangabad dated 06.10.2020 below Exhibit-26 in RCS No.462/2016 whereby application for rejection of the plaint came to be rejected.

3. Facts giving rise to this petition are that plaintiffs have filed RCS No.462/2016 in the Court of C.J.S.D., Aurangabad alleging therein that the suit land ad-measuring 450 feet (East - West) out of survey no.22/2, CTS No.18823 to 18835 ad-measuring 2 acres 2 gunthas has come to the share of Bhagchand. It is alleged that one Harnam Singh was the original owner in possession of the land to the extent of 2 acres 2 gunthas. In this property one Manjulabai had started brick kiln. In the year 1952, original owner Harnam Singh had constructed a bungalow in this land and there was a brick kiln also. Harnam Singh used to sell bricks and Manjulabai and the labourers used to prepare the bricks. It is further alleged that in the year 1971 Harnam Singh sold the land to the extent of 1 acre from the aforesaid 2 acres 2 gunthas to Manjulabai for Rs.3,000/-. In the year 1975, remaining 1 acre land was sold by the said Harnam Singh to Manjulabai for Rs.10,000/- and 2 gunthas of land was donated by him to other persons. In the year 1976, Harnam Singh died and brick kiln was demolished. Manjulabai became the absolute owner of the said 2 acres land.

4. Manjulabai had two daughters and two sons. Names of son were Bhagchand and Ramchand. Bhagchand was suffering from Schizophrenia and Ramchand was a liquor addict. Therefore, in the year 1991-1992, Manjulabai partitioned 2 acres land between Bhagchand and Ramchand. The suit property ad-measuring 450x80 feet came to the share of Bhagchand and thereafter he partitioned this land amongst his family members. In this manner, the plaintiff respondent nos.1 to 6 became the owners of the suit property. Defendants are trying to sell the suit property posing themselves as the owners and therefore plaintiffs have filed this suit. Plaintiffs have valued the suit property @ Rs.13,000/- (i.e. Rs.3,000/- in respect of the first property and Rs.10,000/- in respect of the sale of the property sold later on) and since respondent nos.1 to 6/plaintiffs are claiming 50% of this land, court fee is paid accordingly.

5. Defendant no.3 filed his written statement.

6. After filing of the written statement defendant no.3 filed an application below Exhibit-26 for rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure on the ground that the respondent nos.1 to 6 / original plaintiffs did not value the suit property on the basis of market value and did not pay the court fees treating the said property as non agricultural land. This application came to be rejected. Learned trial Court held that the suit property is an agricultural land. No document is placed on record to show that the suit property has been converted into non agricultural use. The learned trial Court invoked provisions of Section 6 (v) of Maharashtra Court Fees Act for computation of court fees.

7. I have heard learned counsel Shri Kasliwal for the petitioner and Shri Surwase learned counsel for the respondents.

8. Shri Kasliwal submitted that respondent nos.1 to 6 have alleged in the plaint that there was a brick kiln in the land to the extent of 2 acres 2 gunthas when Harnam Singh was the owner. This brick kiln was being operated by Manjulabai, the mother of Bhagchand and Ramchand. He further submitted that there was a bungalow in the suit land. This clearly shows that the suit land was put to non agricultural use. He further submitted that in terms of Section 42-A of Maharashtra Land Revenue Code, when any agricultural land is included in development plan no permission from Collector is required for conversion. He submitted that despite giving gut number to t