JUDGMENT :

1. This writ petition is filed by the petitioner-plaintiffs challenging the order dated 04.05.2022 passed by Additional District Judge No.1, Barmer (for short ‘the trial court’ hereinafter) in case No.41/2021, whereby the application filed by the plaintiffs under Order 6 Rule 17 read with Section 151 CPC for amendment of the plaint has been allowed and the application filed by respondent-defendants under Section 11 of the Rajasthan Court Fees and Suit Valuation Act, 1961 (hereinafter to be referred as ‘the Act of 1961’) has been partly allowed and it has been held that the petitioner-plaintiffs though pleaded in their plaint that the property in question is ancestral but not pleaded that they are in possession of the property, therefore, they are required to pay court fees as per the provisions of Section 35(1) of the Act of 1961 on the market value of the property. The trial court has further directed the petitioner-plaintiffs to pay proper court fees on market value of the property within two months.

2. Brief facts of the case are that the petitioner-plaintiffs filed a suit for partition in relation to a property situated at Mohalla Railway Station, Barmer claiming as ancestral. It was averred that the said property was received by Amrit Lal, Ratan Lal and Ramswaroop through their father viz. Akheraj. Respondent Nos. 1 and 2 in the writ petition have released their share in the above mentioned property in favour of respondent No.3 of the writ petition, however, instead of releasing 1/3rd share, they illegally released the complete property in favour of him.

3. It is contended that shops and a house constructed on the property was being rented out to one M/s Bhagwati Electricals without seeking permission of the petitioners and later on except one shop, the complete structure built on the plot was demolished by the respondents without informing the petitioners. It is also averred that the respondents have attempted to change the nature of property in question and the request of the petitioners to partition the property was denied by the respondents.

4. The petitioners have averred in the plaint that the property in question is valued at rupees one crore and based on that court fees of Rs.200/-has been furnished. The petitioners have prayed that a decree partition of the property be issued and also sought for injunction to the effect that the respondent Nos.1 to 3 should not further sell the property as well as change the nature of the property. It was also prayed that the released deed executed by the respondent Nos.1 and 2 in favour of respondent No.3 shall be declared as null and void.

5. The respondents herein filed an application under Section 11 of the Act of 1961 contending that the petitioners have filed a suit for declaration of the release deed as null and void and further prayed for injunction against the respondents but proper court fees of this effect have not been furnished. It was prayed that the petitioners be directed to pay proper court fees or else, the suit be dismissed.

6. At this stage, the petitioners filed an application under Order 6 Rule 17 CPC with a prayer to allow them to amend the plaint and delete the paragraphs 12(2) i.e. the prayer for declaration of release deed as null and void. The case of the petitioners was that the release deed is void ab initio, hence, there is no need to get it declared ‘null and void’.

7. The learned trial court after hearing the parties has allowed the application filed by the petitioners under Order 6 Rule 17 CPC and also deleted the paragraph 12(2) of the plaint, however, partly allowed the application under Section 11 of the Act of 1961 filed on behalf of the respondents and directed the petitioners to pay court fees on the market value of the property within two months.

8. Assailing the order dated 04.05.2022, learned counsel for the petitioners has argued that the trial court has failed to appreciate that the petitioners have nowhere specifically pleaded that