JUDGMENT :

1. Rule. Rule made returnable forthwith. With consent of both the sides, the petition is taken up for final hearing.

2. By this Petition, Petitioners/Plaintiffs have challenged order dated 5 March 2022 passed by the Jt. Civil Judge, Senior Division, Pune thereby allowing the application fled by Defendant no.1 under the provisions of Order 7 Rule 11(b) and (d) of the Code of Civil Procedure and directing Petitioners/Plaintiffs to pay the court fee on the market value of the suit property to the extent of 3/5th share. Plaintiffs/Petitioners are thus directed to pay maximum court fee of Rs.3,00,000/- and on failure to pay the same, the plaint is directed to be rejected.

3. Plaintiffs/Petitioners have fled Regular Civil Suit No.54 of 2021 seeking 3/5th undivided share in the suit property. Plaintiffs/Petitioners have also sought a declaration that the sale deed dated 1 July 2014 executed by Defendant Nos.2 to 7 in favour of Defendant no.1 is not binding on their 3/5th share. Petitioners/Plaintiffs have sought injunction against Defendant No.1 from carrying out any construction on the suit property. Petitioners/Plaintiffs have also sought relief for demolition of construction erected by Defendant No.1.

4. Defendant no.1 fled an application under the provisions of Order 7 Rule 11(b) and (d) of the Code of Civil Procedure on the ground that the suit is not properly valued. That the suit ought to have been valued in accordance with Section 6(i) (ha) of the Maharashtra Court Fees Act, 1959 (“the Act of 1959”). Accepting the contentions of Defendant No. 1, the trial court has proceed to partly allow the application by impugned order dated 5 March 2022.

5. Appearing for Petitioners/Plaintiffs, Mr. Deo the learned counsel would contend that in prayer clause (c) of the plaint, Petitioners/Plaintiffs have merely sought a declaration about the sale deed not being binding on their 3/5th share. That they have not sought cancellation of sale deed. It is submitted that Petitioners/Plaintiffs are not signatories or parties to the sale deed. That therefore the provisions of section 6(iv)(ha) of the Act of 1959 would not be attracted and Petitioners/Plaintiffs are not required to value the suit on the basis of value of property. He would place reliance on the judgment of Division Bench of this Court at Aurangabad in Dilip Khushalchand (Srisrimal) Jain Versus Hardik Deepakbhai Ramani & ors., Writ Petition No.8968 of 2018 decided on 5 May 2022. He would then invite my attention to prayer clause (e) in the suit to submit that the relief of demotion of construction is not covered by the provision of section 6(iv)(ha) and would be covered by the provision of Section 6(iv)(j) of the Act of 1959. He would therefore submit that the Trial Court has erred in directing payment of the court fee of Rs.3,00,000/-. Mr. Deo however fairly concedes that the suit was fled on an assumption that the suit property is an non-agricultural. However, it now transpires that it has been covered for use as non-agricultural purposes. He would therefore submit that Petitioners/plaintiffs are willing to value the suit appropriately and pay the balance court fee.

6. Per contra, Mr. Barthakar the learned counsel appearing for Respondents/Defendants would oppose the Petition and support the order passed by the Trial Court. He would submit that seeking declaration about sale deed being not binding on Plaintiffs/Petitioners’ share is akin to seeking relief of cancellation of sale deed and that therefore the provisions of Section 6(iv)(a) of the Act of 1959 are attracted. He would dispute the application of judgment of this Court in Dilip Khushalchand (Srisrimal) Jain (supra) to the facts and circumstances of the present case. He would further submit that so far as the relief sought for demolition of construction is concerned, Plaintiffs/Petitioners are bound to value the suit by taking into consideration the value of construction. He would submit that even prayer clause (e) in t