2022:BHC-AS:6244 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10975 OF 2018 Sanjay Ramchandra Shendkar & Ors .. Petitioners Versus Narayan Antu Zendge & Ors .. Respondents …

Mr. Sarthak S. Diwan for the petitioner in WP No. 10975/2018.

Mr.Dormaan Jamshid Dalal for the respondent no.18 in WP

10975/2018.

CORAM: BHARATI DANGRE, J.

RESERVED : 15th DECEMBER, 2021 PRONOUNCED: 17th MARCH, 2022 JUDGMENT :-

1 Heard learned Advocate Shri Sarthak Diwan for the petitioner and Advocate Dormaan Dalal for the respondent/

defendant no.18.

2 A short point that arise for consideration is whether the Suit filed by the plaintiffs, seeking declaration and perpetual injunction ought to have attracted the Court fee in terms of Section 6(iv)(ha) or the Court fee was to be charged under Section 6(iv)(j) of the Maharashtra Court Fees Act.

The aforesaid question arose in the backdrop of the fact that the Suit property is an agricultural property described in paragraph no.1 of the plaint and it was pleaded to be the ancestral property of one Shri Savla, having two sons – Ramchandra and Baban and four daughters. It was pleaded that the suit property was never partitioned in the joint family of Savla and it was cultivated in that capacity. After the demise of Savla, his widow Chandrabhaga was recorded as the owner of the suit property.

The contention of the plaintiffs is to the effect that defendant no.18 prepared a fraudulent unregistered document titled as ‘Power of Attorney’ and the plaintiffs dispute execution of any such document, by pleading that they have never been to Pune for the purpose of executing the said document, but with an ill-intention to grab the property, the document was forged and therefore, it is pleaded that the Power of Attorney is not binding on the plaintiffs and the said document is void, illegal. The plaintiffs further plead that on the basis of the aforesaid Power of Attorney, the defendant no.18 started disposing off the suit property as it was required for Rayata Dam Project and the same was declared as a ceiling area in 1972, and there was a prohibition on sale of the property as per The Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, and the permission of Revenue Authority was required to dispose off the property. Despite prohibition in existence, the defendant no.18 is alleged to have sold the property vide various sale deeds in favour of the defendants right from defendant no.1 to defendant no.17 and defendant nos.19 to 76, and all the sale deeds are executed on the basis of the forged Power of Attorney and third party rights have been created in favour of other defendants.

It is in the backdrop of the aforesaid facts, the plaintiff filed a Suit, praying for a declaration that all the sale deeds executed in pursuance of the Power of Attorney by defendant no.18 are not binding on the plaintiffs and the sale deeds executed in favour of defendant no.1 to defendant no.17 and further in favour of defendant no.19 to defendant no.76 are null and void.

3 Summons came to be issued in RCS No.123/2013 filed by plaintiffs, pursuant to which, the defendant no.18 marked his appearance and filed written statement. He also filed an application (Exhibit 140) under Order VII Rule 11 of the Code of Civil Procedure, seeking rejection of plaint alleging that the plaintiffs have undervalued the Suit and not paid proper Court fee as per Section 5 of the Act. It was also pleaded that the Suit was not maintainable since it was filed by holder of Power of Attorney and also on the ground, that it is not filed within limitation and there is no cause of action.

4 On 30/11/2017, the Civil Judge, Jr. Division, Saswad, partly allowed the application filed by defendant no.18 and declared that the Suit for perpetual injunction is properly valued and the Court fee is accordingly paid, but concluded that, since plaintiffs are challenging sale deeds more particularly described in the plaint and si