YASHWANTA Vs. MAHADEO

JUDGEMENT

(1.) The challenge in this writ petition filed under Article 227 of the Constitution of India is to order dated 19.04.2010 passed below Ex. 69 in RCS No. 163/2009 by the Court of Civil Judge, Junior Division, Parseoni, District - Nagpur, rejecting the objection to court fee and valuation of suit for declaration of title on the basis of its perfecting by adverse possession. This Court has issued notice for final disposal. Considering the nature of controversy, I have heard both learned Counsel finally by issuing Rule and making it returnable forthwith.

(2.) After coming to know that defendants No. 1 to 5 against whom the suit was filed have on 08.09.2009 sold the disputed property to defendant no. 6, plaintiffs (respondents before me) amended their plaint and added that purchase as defendant 6. They also added a relief that said sale deed should be declared as null, void and be cancelled. After said amendment, the defendants moved application at Exh. 69 contending that as sale consideration was Rs. 2,37,500/, the suit needed to be valued in accordance with S.6(iv)(ha) and S.6(iv) (diii) proviso of the Bombay Court Fees Act. They urged that ad valorem court fee in full was accordingly had become payable. The Trial Court rejected that objection by impugned order.

(3.) Point raised is whether in a Suit filed for declaration of ownership because of the adverse possession, upon amendment to declare a lispendence saledeed executed by the defendant therein bad and not binding on him, the plaintiff has to pay court fee under S.6(iv)(ha) of the Bombay Court Fees Act, 1959, (hereinafter referred to as the Act). Further as he is claiming restoration of possession, he has to pay full ad valorem fees calculated on sale consideration of Rs.2,37,500/