Bombay High Court
Smt. Shakuntalabai @ Seema W/O ... vs Premsingh S/O Gangaramsingh ... on 17 October, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 1183 OF 2014
1] Smt. Shakuntalabai @ Seema w/o
Sureshsingh Gaur, aged about 56 years,
Occ. Agriculturist, R/o. B-2, Corporation
Colony, North Ambazari Road,
Nagpur.
2] Ramsingh Gangaramsingh Bisen,
aged about 43 years, Occ. Agriculturist,
R/o. Bisne Complex, Shivaji Plots,
Akola, Distt. Akola ... PETITIONERS
...VERSUS...
1] Premsingh Gangramsingh Bisen,
aged about 61 years, Occ. Business,
2] Rupeshsingh Premsingh Bisen,
aged about 31 years, Occ. Business,
Both R/o. Bisen Complex,Shivaji Plots,
Akola, Distt. Akola.
3] Kailashsingh Gangaramsingh Bisen,
aged about 50 years, Occ. Business,
4] Girdharsingh Gangaramsingh Bisen,
aged about 48 years, Occ. Service,
5] Shivshankarsingh Gangaramsingh Bisen,
aged about 48 years, Occ. Business,
Nos. 3 to 5, R/o. Bisen Complex,
Near Towar, Akola, Tq. & Distt. Akola.
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6] Sheikh Rahim Sheikh Musa,
Major, Occ. Business, Sindhi Camp,
Akola, Tq. And Distt. Akola.
7] Wahimkhan Rasidkhan,
Major, Occ. Business, R/o. Navabpura,
Akola, Tq. And Distt. Akola.... RESPONDENTS
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Shri A.V.Muley, Advocate, for Petitioners.
Shri A.R.Deshpande, Advocate for Respondent Nos. 1 to 5
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CORAM: R. K. DESHPANDE, J.
ig th
DATE : 17 OCTOBER 2016
1] Rule made returnable forthwith.
Heard the matter finally by consent of the
learned counsels appearing for the parties.
2] The challenge in this petition is to the common
order dated 12.11.2013 passed by the trial Court below Exh
Nos. 66, 80 and 81. The trial Court has directed the plaintiff
to evaluate the subject matter of the suit as per market value
of the properties covered by Wills dated 07.07.1983 and
21.01.1985. It is further the order passed that the plaintiff to
add all the legal heirs of Gangaramsingh Mulsingh Bisen and
beneficiaries of the said disputed three Wills as party to the
suit.
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3] The suit in question claims a relief as under;
[1] Suit of the plaintiff may decreed and it may kindly
be declared that the plaintiff are the lawful
owners of the suit field by virtue of will deed Dt.
07.07.1983 and the alleged will deed Dt.
21.01.1985 may be declared as bogus, brought
up, fraudulent and forge.
[2] Defendant may kindly be restrain from interfering
the peaceful possession of the plaintiff and
defendants may kindly be restrained from
creating any third party interest in the suit fields
[3]
in any mode or manner.
Cost of the suit kindly be awarded as per the
circumstances with any other relief, which the
Hon'ble Court deems proper and appropriate"
4] It is not the suit claiming the possession of the
properties, but a simplicitor suit claiming declaration along
with prohibitory injunction restraining the defendants from
interfering with the possession of the plaintiff over the suit
property and creating any third party interest in it in any
manner. Obviously, the suit is governed by Section 6(iv)(d)
of the Maharashtra Court Fees Act. The suit is valued as a
suit for declaration and accordingly the court fee has been
paid. In the absence of any relief of possession being
claimed, the trial Court was not justified in directing the
petitioners to evaluate the suit as per the market value of the
properties mentioned in the Wills.
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5] Be that as it may, the suit property is described
in paragraph 1 of the plaint and it was not necessary for the
plaintiff to evaluate the suit and pay the Court fee in respect
of the properties which are not the subject matter of the suit,
though included in the Will dated 07.07.1983. It is urged that
the plaintiff is claiming a declaration that the Will deed dated
21.01.1985 be declared as bogus. However, in respect of
the properties covered by the said Will also, there is no
decree for possession claimed. In view of this, the order
passed by the trial Court directing the plaintiff to evaluate the
suit as per the market value of the properties mentioned in
both the Wills cannot be sustained.
6] It is not disputed that there was no application
under Order I, Rule 10 of C.P.C. But, in spite of that, the
Court has directed the plaintiff to add legal heirs of
Gangaramsingh Mulsingh Bisen and beneficiaries of the
disputed three Wills as party to the suit. Such question can
be adjudicated either upon any such application being made
or by framing an issue on the basis of such stand taken in the
written statement. The said order also, therefore, cannot be
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sustained and it will have to be set aside.
7] In the result, the writ petition is allowed. The
order dated 12.11.2013 is hereby quashed and set aside.
The Civil Applications at Exh. Nos. 66, 80 and 81 are all
dismissed. So far as joinder or misjoinder of parties are
concerned, the Court is at liberty to adjudicate such issue
either on such application being made by any of the parties
or by framing an issue in that regard.
Rule made absolute in above terms. No order
as to cost.
JUDGE
Rvjalit
