DILIPSINH DEVUBHA ZALA Vs. KISHORBHAI RANCHHODBHAI THUMMAR

JUDGEMENT

(1.) This appeal under Section 100 of the Code of Civil Procedure,1908 (hereinafter referred to as "the Code"), the appellant has challenged the order dated 16.7.2011 passed by the learned Fourth Additional District Judge, Gondal below Exhibit -11 in Regular Civil Appeal No.68 of 2011 whereby the application has been allowed and the appeal preferred by the appellant herein has been dismissed.

(2.) The respondents herein (original plaintiffs) instituted a suit in the Court of the learned Second Additional Senior Civil Judge, Gondal being Special Civil Suit No.81 of 1999 contending that the land admeasuring Acres 2 - 02 Gunthas of survey No.19 of Village Jamvadi, which is running in the name of the defendant, is ancestral land and that the plaintiffs have a right therein by birth. It was further the case of the plaintiffs that the plaintiffs and the defendants are coparceners of the suit property and that despite the fact that the plaintiffs had four shares in the property, since the names of the defendants are running in the revenue record and possession is also with them, they are in the process of transferring the same in favour of others. It is in the aforesaid circumstances, the plaintiffs instituted the above referred suit seeking following reliefs :

(3.) By a judgement and decree dated 28.11.2008 passed by the learned Second Additional Senior Civil Judge, Gondal, the suit came to be decreed in favour of the plaintiffs. Being aggrieved, the appellant - original defendant No.2 carried the matter in appeal before the learned Additional District Judge, Gondal. In the said appeal, the respondents - original plaintiffs filed an application at exhibit -11, contending that the plaintiffs had instituted the suit claiming their share in the suit property and had paid the Court fees on the basis of 40% of the assessment as the suit lands are agricultural lands and that considering the value of the land, for the purpose of jurisdiction, the suit was valued at Rs.6 lakhs. Under Section 15 of the Gujarat Civil Courts Act, 2005, there is a provision for appeal and as per Section 15(2)(a), when the subject matter of appeal is less than five lakhs of rupees, there is a provision for appeal before the learned District Judge and in other cases, the appeal lies before the High Court under Section 15(2)(b) of the said Act. The jurisdiction for an appeal is decided on the basis of value for jurisdiction as stated in the plaint and not on the basis of valuation for the purpose of Court fees. In the facts of the present case, the value for the purpose of jurisdiction was Rs.6 lakhs and as such, in view of the provisions of Section 15(2)(b) of the Gujarat Civil Courts Act, 2005, the appeal would lie before the High Court and as such, the said Court had no jurisdiction to decide the appeal. Hence, the appeal is required to be dismissed on the ground of jurisdiction or in the alternative is required to be ordered to be returned.