SAGAR DATTATRAYA SAKHARE Vs. SANJAY WAMAN SATHE

JUDGEMENT

(1.) A short question which arises for consideration in the above Petition is, whether the forum of Appeal is to be determined on the basis of the value of the subject matter of the Suit as determined by the Trial Court in the decree or on the basis of the valuation of the suit as originally set out in the plaint.

(2.) The above Petition is directed against the order dated 13/10/2010 passed by the learned District Judge12, Pune by which order the Applications Exhibits 9 and 14 filed in Civil Appeal No.758 of 2008 by the Respondents herein came to be allowed and the Memo of Appeal was directed to be returned to the Petitioners herein for presentation before the appropriate forum. The Petitioners herein are the original Plaintiffs and the Respondents herein are the original Defendants. The parties would be referred to as per their status in the Trial Court.

(3.) The Plaintiffs had filed the suit in question being Regular Civil Suit No.1171 of 2006 against the Defendants for seeking a declaration that the Gift Deed dated 10/11/2005 executed by the Defendant Nos.2 and 3 in favour of the Defendant No.1 in respect of the suit properties be declared as illegal, null and void, and not binding on the Plaintiffs, and the same be cancelled. The Plaintiffs had also sought the relief of partition of the suit properties and permanent injunction. It was the case of the Plaintiffs that the Defendant No.2 has two sons one Dattatraya who had expired, and the Defendant No.6. The Plaintiffs claimed through the said Dattatraya being his son and widow. The Defendant No.3 is the wife of Defendant No.2 and the Defendant No. 6 is the father of Defendant Nos.4 and 5. The Defendant No.1 in whose favour the Gift Deed has been executed by the Defendant Nos.2 and 3 is the grandson of the Defendant Nos.2 and 3 being the son of their daughter one Chandrabhaga Waman Sathe. According to the Plaintiffs a registered deed of partition came to be executed on 13/9/2002 with the consent of the sister of the Defendant No.2. It was the case of the Plaintiffs that in terms of the Partition Deed, the Defendant No.2 though having a share in the properties being Survey No. 5/10/, 79/2, 102/2 and 116/2, had agreed that he would not transfer the same during his life time and after his demise 1/2 share will come to the Plaintiffs and 1/2 will go to the Defendant Nos.4 and 5. It was the case of the Plaintiffs that despite the said Partition Deed, the Defendant Nos.2 and 3 executed the registered Gift Deed in favour of the Defendant No.1 on 10/11/2005 not only in respect of the suit properties but also in respect of the land bearing Survey No.133/5 in violation and breach of the Partition Deed and therefore the suit has been filed by the Plaintiffs claiming partition of their 1/3rd share in Survey No.133/5, and seeking declaration that the Gift Deed executed by the Defendant Nos.2 and 3 in favour of the Defendant No.1 is illegal, null and void and not binding on the Plaintiffs.