Sardar Gurpreetsingh ... vs Sangeeta Bhagchand Bhavle And ...
2022 Latest Caselaw 7 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                           WRIT PETITION NO. 8225 OF 2020

      Sardar Gurpreetsingh Gurnamsingh Pander
      Age : 50 Years, Occ.: Business,
      R/o. : Sryakiran Appt Flat No.1,
      Near Shrimya Hotel Bansilal Nagar
      Station Road, Aurangabad.                           ... PETITIONER
                                                     (Original Defendant No. 3)

               VERSUS

1)    Sangeeta Bhagchand Bhavle
      Age : 43 years, Occ : Household

2)    Florabai Bhagchand Bhavle
      Age : 74 years, Occ : Household

3)    Premlata Bhagchand Bhavle
      Age : 54 years, Occ : Household

4)    Vijay Bhagchand Bhavle
      Age : 49 years, Occ : Driver

5)    Ajay Bhagchand Bhavle
      Age : 46 years, Occ : Driver

6)    Sanjay Bhagchand Bhavle
      Age : 44 years, Occ : Business

(All respondents No. 1 to 6 R/o. Dhangarwada
Near Jalan Nagar Aurangabad)
(Respondent No. 1 is holding GPA
for Respondent No. 2 to 6)                                 ... RESPONDENTS
                                                (Original :Plaintiff No. 1 to 6)
                                       ....
       Shri. Ajeet D. Kasliwal, Advocate for the petitioner
       Shri. P. N. Surwase, Advocate for respondent Nos. 1 to 6
                                       ....


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                                       CORAM : M. G. SEWLIKAR, J.

RESERVED ON : 22nd July, 2021 PRONOUNCED ON : 3rd January, 2022

JUDGMENT :-

Rule. Rule made returnable forthwith. With the consent of the

parties taken up for final hearing at the admission stage.

2. This writ petition is preferred by the petitioner, being aggrieved

by the judgment and order passed by the learned 2 nd C.J.S.D., Aurangabad

dated 06.10.2020 below Exhibit-26 in RCS No.462/2016 whereby application

for rejection of the plaint came to be rejected.

3. Facts giving rise to this petition are that plaintiffs have filed RCS

No.462/2016 in the Court of C.J.S.D., Aurangabad alleging therein that the

suit land ad-measuring 450 feet (East - West) out of survey no.22/2, CTS

No.18823 to 18835 ad-measuring 2 acres 2 gunthas has come to the share of

Bhagchand. It is alleged that one Harnam Singh was the original owner in

possession of the land to the extent of 2 acres 2 gunthas. In this property one

Manjulabai had started brick kiln. In the year 1952, original owner Harnam

Singh had constructed a bungalow in this land and there was a brick kiln also.

Harnam Singh used to sell bricks and Manjulabai and the labourers used to

prepare the bricks. It is further alleged that in the year 1971 Harnam Singh

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sold the land to the extent of 1 acre from the aforesaid 2 acres 2 gunthas to

Manjulabai for Rs.3,000/-. In the year 1975, remaining 1 acre land was sold

by the said Harnam Singh to Manjulabai for Rs.10,000/- and 2 gunthas of

land was donated by him to other persons. In the year 1976, Harnam Singh

died and brick kiln was demolished. Manjulabai became the absolute owner

of the said 2 acres land.

4. Manjulabai had two daughters and two sons. Names of son were

Bhagchand and Ramchand. Bhagchand was suffering from Schizophrenia

and Ramchand was a liquor addict. Therefore, in the year 1991-1992,

Manjulabai partitioned 2 acres land between Bhagchand and Ramchand. The

suit property ad-measuring 450x80 feet came to the share of Bhagchand and

thereafter he partitioned this land amongst his family members. In this

manner, the plaintiff respondent nos.1 to 6 became the owners of the suit

property. Defendants are trying to sell the suit property posing themselves as

the owners and therefore plaintiffs have filed this suit. Plaintiffs have valued

the suit property @ Rs.13,000/- (i.e. Rs.3,000/- in respect of the first property

and Rs.10,000/- in respect of the sale of the property sold later on) and since

respondent nos.1 to 6/plaintiffs are claiming 50% of this land, court fee is

paid accordingly.

5. Defendant no.3 filed his written statement.

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6. After filing of the written statement defendant no.3 filed an

application below Exhibit-26 for rejection of plaint under Order 7 Rule 11 of

the Code of Civil Procedure on the ground that the respondent nos.1 to 6 /

original plaintiffs did not value the suit property on the basis of market value

and did not pay the court fees treating the said property as non agricultural

land. This application came to be rejected. Learned trial Court held that the

suit property is an agricultural land. No document is placed on record to

show that the suit property has been converted into non agricultural use. The

learned trial Court invoked provisions of Section 6 (v) of Maharashtra Court

Fees Act for computation of court fees.

7. I have heard learned counsel Shri Kasliwal for the petitioner and

Shri Surwase learned counsel for the respondents.

8. Shri Kasliwal submitted that respondent nos.1 to 6 have alleged

in the plaint that there was a brick kiln in the land to the extent of 2 acres 2

gunthas when Harnam Singh was the owner. This brick kiln was being

operated by Manjulabai, the mother of Bhagchand and Ramchand. He further

submitted that there was a bungalow in the suit land. This clearly shows that

the suit land was put to non agricultural use. He further submitted that in

terms of Section 42-A of Maharashtra Land Revenue Code, when any

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agricultural land is included in development plan no permission from

Collector is required for conversion. He submitted that despite giving gut

number to the lands, record in respect of 7/12 extract and record in respect of

survey numbers were maintained. He produced an abstract to show that the

procedure of maintaining the record of this land in the 7/12 extract is

stopped. He submitted that all these circumstances show that it is a non

agricultural land and the court fee ought to have been paid treating the said

land as non agricultural land. He placed reliance on the case of State of U.P.

V/s. Nandkumar Aggarwal and Ors.; AIR 1998 SUPREME COURT 473.

9. Learned counsel Shri Surwase submitted that no record is

produced to show that the suit property was converted to non agricultural

use. Unless there is evidence to indicate that it was converted to non

agricultural use, suit property cannot be valued treating it as non agricultural

land. It will have to be computed treating it as an agricultural land. He

further submitted that no rules in this regard have been framed and therefore

computation will have to be made treating the suit property as agricultural

land. For this purpose he placed reliance on the order passed by this Court in

case of Shri Sudhir N. Kothari and Anr. V/s. Shri Vaghu Tatyaba Padwal and

Ors. (Civil Revision Application No.446 of 2012).

10. A short question involved in this petition i.e. whether the suit

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property can be treated as an agricultural land or non agricultural land for

computation of court fees.

11. Admittedly, in the case at hand, no record is produced to show

that the suit property was converted to non agricultural use. However,

pleadings of the plaintiffs themselves show that predecessor in title of the

plaintiffs and Manjulabai had put the property ad-measuring 2 acres 2

gunthas to non agricultural use. It is pleaded in the plaint that original owner

Harnam Singh had constructed a bungalow in the suit property. He had

permitted Manjulabai to start brick kiln in the suit property. These pleadings

show that land to the extent of 2 acres 2 gunthas was converted to non

agricultural use. This view of mine is fortified by the observations made by

the Hon'ble Apex Court in the case of State of U.P. V/s. Nandkumar Aggarwal

cited (supra), which are as under:

"6. In the master plan the area in question is no doubt shown as agriculture. If we refer to the Schedule mentioned in the defnition of urban agglomeration it could be seen that area in question falls within urban agglomeration as it is situated within the peripheral area of the Municipal Corporation of Lucknow (Lucknow Nagar Mahapalika). The land in question will not be urban land if though situated within the limits of an urban agglomeration, it is mainly used for the purpose of agriculture. Operating of a Bhatta cannot certainly be an agriculture purpose, Mr. Rohtagi, learned counsel for the 1st respondent submitted that Explanation to clause (o) shows as what is not

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included in agriculture and since Bhatta is not one of the entries therein it would mean that operating Bhatta would be an agriculture purpose. We do not fnd any substance in the submission. It is correct that the land in question is entered in the revenue record but at the same time the record shows that the land is being used for Bhatta. The foremost question is; if the land in question though agricultural was being mainly used for the purpose of agriculture on the appointed day? Seeing the defnitions as set out above and the afdavit of the 1st respondent dated August 13, 1976 the answer is obvious that the land in question is not being mainly used for the purpose of agriculture. Agriculture under the explanation to clause (o) has limited meaning. It includes horticulture but does not include cultivation of every type of vegetation or rearing of animals or birds. That apart to hold land is mainly used for the purpose of agriculture. Agriculture under the explanation to clause (o) has limited meaning. It includes horticulture but does not include cultivation of every type of vegetation or rearing of animals or birds. That apart to hold that land is mainly used for the purpose of agriculture it is not enough even if the land is entered in the revenue records before the appointed day used for the purpose of agriculture or even if so entered the master plan gives purpose of the land other than agriculture. In the present case though (B) and (C) to the explanation are satisfed but (A) is not as the purpose to which the land, though agriculture and so entered in the revenue records, was being used for running of brick- kiln. High Court was not, therefore, correct in holding that the land was being mainly used for the purpose of agriculture merely on the strength of the purpose in master plan which is specifed as agriculture (Krishi Bhumi) and that the land is entered in the revenue records. High Court has wrongly applied

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Explanation B to clause (o) of Section 2 of the Act. Simply because land is entered in the revenue record would not mean that it is being used mainly for the purpose of agriculture. Here the land is mainly for the purpose of brick kiln business of the 1st respondent. It is not material if a small portion of the land was being used for the purpose of agriculture as well."

12. From this authoritative pronouncement of the Hon'ble Apex

Court, it is evident that when land is being used mainly for brick kiln it cannot

be said that it is agricultural land. It has been put to non agricultural use. In

the case at hand, not only brick kiln was constructed but also a bungalow was

constructed in the land owned by Harnam Singh the predecessor in title of the

plaintiffs and their mother Manjulabai. Therefore, I find much substance in

the arguments advanced by learned counsel Shri Kasliwal that the suit

property was put to non agricultural use. When the land is put to non

agricultural use, court fees will have to be computed treating it as non

agricultural land.

13. In the case of Shri Sudhir N. Kothari and Anr. cited (supra), it has

been observed as under:

"13. Mr. Anturkar relied upon the decision of Shantabai's case (supra) and in particular paragraphs-5 and 6 thereof. In that case the plaintif had instituted the suit for possession of the agricultural land. He had paid the court fee stamp of a value equal to twenty times the land revenue. He had valued for the purpose of jurisdiction Rs.9000/- which,

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according to him, was the market value of the land. The defendant therein raised an objection on the ground that the valuation so far as jurisdiction was concerned, was not proper. According to the defendants the valuation for the purpose of jurisdiction should be similar to that of the valuation for the purposes of the court fee stamp. In para-4 of the report, the Court specifcally recorded that the State Government did not make Rules for the purpose of determining the value of land for the purpose of jurisdiction. The decision relied upon by Mr. Anturkar was rendered on 16.1.1970 and the Rules came into efect w.e.f. 1.1.19844. In view thereof, reliance placed by Mr. Anturkar on Shantabai's case does not advance the case of defendant Nos. 1 and 2."

This authority has no application to the facts of the instant case,

because in terms of this authority it is clear that rules have been framed w.e.f.

01.01.1984.

14. Court fee will have to be computed in terms of Section 6 (iv) (d)

of the Maharashtra Court Fees Act. Section 6 (iv) (d) reads as under:

"Section 6 (iv) (d) for ownership etc. of immovable property, etc. In suits for declaration in respect of ownership, or nature of tenancy, title, tenure, right, lease, freedom or exemption from, or non-liability to, attachment with or without sale or other attributes, of immoveable property, such as a declaration that certain land is personal property of the Ruler of any former Indian State or public trust property or property of any class or community one-fourth of ad valorem fee leviable for a suit for possession on the basis of title of the subject-matter, subject to a minimum

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fee of [one hundred rupees]:

Provided that if the question is of attachment with or without sale the amount of fee shall be the ad valorem fee according to the value of the property sought to be protected from attachment with or without sale or the fee of [sixty rupees], whichever is less:

Provided further that, whenever the defendant is or claims under or through a limited owner, the amount of fee shall be [one third] of such ad valorem fee, subject to the minimum fee specified above:

Provided also that, in any of the cases falling under this clause except its first proviso, when in addition any consequential relief other than possession is sought the amount of fee shall be one-half of ad valorem fee and when the consequential reliefs also sought include a relief for possession the amount of fee shall be the full ad valorem fee;"

15. The trial Court has held in the suit for declaration of ownership

and possession that court fee will have to be paid treating it as an agricultural

land in terms of Section 6 (v) of Maharashtra Court Fees Act. Learned trial

Court failed to consider the pleadings of the plaintiffs that the original owner

Harnam Singh had already converted the property to non agricultural use by

building a bungalow and by constructing a brick kiln. Therefore, the trial

Court has committed error in holding that the suit property is an agricultural

land. Therefore, interference in the order of the learned trial Court is called

for. Hence the following order is passed:

ORDER

I) Writ petition is allowed.

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II)     Impugned order dated 06.10.2020 passed by Jt.C.J.S.D. in RCS

        No.462/2016 is set aside.

III)    Application under Exhibit-26 is allowed.

IV)     Court fee be paid in terms of Section 6 (iv) (d) of Maharashtra Court

Fees Act treating the suit property as non agricultural land.

V) Plaintiffs to pay the Court fee as aforesaid within the time fixed by the

trial Court.

VI) If the Court fee is not paid within the time fixed by the trial Court or

within the time extended by the trial Court, consequences under Order

7 Rule 11 of the Code of Civil Procedure shall follow.

VII) With these directions rule is made absolute in above terms.

[M.G. SEWLIKAR, J.]

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