The suit for avoidance of a deed granting easementary rights must be valued under Section 6(iv)(ha) of the Court Fees Act, as it concerns rights in immovable property, exceeding the jurisdiction of the City Civil Court.

JUDGMENT :

T HE C HALLENGE

1. This Appeal is filed challenging the order dated 12 October 2022 passed by the learned Judge, City Civil and Sessions Court, Greater Mumbai allowing Notice of Motion No. 1797/2021 filed by the Defendant under Order 7 Rule 10 of the Code of Civil Procedure, 1908 (the Code) returning the Plaint to be presented before this Court. The Plaint is returned essentially on the ground that the same does not fall within the pecuniary jurisdiction of the City Civil Court.

F ACTS :

2. The Appellant-Plaintiff is a Trust and Plaintiff Nos.1 to 6 are its Trustees. The Trust apparently owns land bearing C.T.S. No. 2/583, Jagmohandas Marg, Nepean Sea Road, Mumbai-400026 (suit land). Defendant owns a Plot adjoining the suit land and the Defendant has been granted easementary right to approach his land from the suit land owned by Plaintiffs. Plaintiff got aggrieved by the act of the Defendant in commencing construction on the Trust property and accordingly instituted S. C. Suit No. 112 of 2021 before the City Civil Court seeking inter alia prohibitory injunction against the Defendant to restrain it from raising any construction over the suit property. In its Written Statement, Defendant relied upon the Deed of Additional Right of Way dated 4 November 2020 executed by Mr. Sunil Damani in his capacity as the Trustee of the Trust, under which the Defendant claims that the Trust granted additional right of way of 3.74 mtrs width on the western portion passing through the Trust property and leading to the Defendant’s property on consideration of Rs. 7,50,000/- annually to the Trust. Plaintiffs therefore amended the Plaint, inter-alia to include challenge to the Deed of Additional Right of Way dated 4 November 2020.

3. After amendment of the Plaint, Defendant filed Notice of Motion No. 1797/2021 under the provisions of Order 7 Rule 10 of the Code for return of the Plaint on the ground that the Deed of Additional Right of Way dated 4 November 2020 is valuated at Rs.1,95,00,000/-, on which stamp duty of Rs.5,85,000/- is paid. Defendant therefore contended that the suit ought to have been valued at Rs. 1,95,00,000/- and therefore would fall beyond the pecuniary jurisdiction of the City Civil Court, which is restricted at Rs.1 crore. Plaintiffs resisted the Motion by filing Affidavit in Reply inter-alia contending that the document is not executed by the Trust and therefore not binding on it. That the suit has rightly been valued under Clause 6(iv)(j) of the Maharashtra Court Fees Act, 1959 (Court Fees Act). After hearing both sides, the City Civil Court proceeded to pass order dated 12 October 2022 and allowed Notice of Motion No. 1797/2021 directing return of the Plaint filed in S. C. Suit No. 112/2021 to the Plaintiffs to be presented before this Court. Plaintiffs are aggrieved by the order dated 12 October 2022 and have filed the present Appeal.

4. Mr. Godbole, the learned senior advocate would appear on behalf of the Appellants/Plaintiffs and submit that the Suit is only for a declaration and is therefore correctly valued under Section 6(iv)(j) of the Court Fees Act. He would submit that the valuation done for the purpose of payment of stamp duty under the provisions of Maharashtra Stamp Act, 1958 is totally irrelevant for the purpose of valuation of the suit under the provisions of the Suits Valuation Act, 1887 or under the Court Fees Act. That the case of the Plaintiffs is that the Deed of Additional Right of Way has been unauthorisedly executed by Shri. Sunil Damani who does not have any authority to execute any document on behalf of the Trust and the Trust is merely seeking a declaration that the said document is not binding on it. That under such circumstances, the suit has correctly been valued under Section6(iv)(j) of the Court Fees Act.

5. Mr. Godbole would further contend that an easement does not create any right in the property, which is capable of being sold or transferred. That therefore a suit seeking declaration t