Bombay High Court
Namdeo Sahebrao Nikam vs Sonba Bhujaba Gharat And Ors on 16 April, 2025
Author: N.J. Jamadar
Bench: N.J. Jamadar
2025:BHC-AS:18187
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4515 OF 2025
Namdeo Sahebrao Nikam }
Age 57, Occu: Agriculturist }
R/o at Natepute, Tal-Malshiras, }
District-Solapur } ....Petitioner
} (Orig. Plaintiff)
V/s.
1.Mr. Sonba Bhujaba Gharat }
Age: 59, Occu: Agriculturist }
VARSHA
DEEPAK 2.Mr. Subhas Bhujaba Gharat }
GAIKWAD
Digitally signed by
Age: 55, Occu: Agriculturist }
VARSHA DEEPAK
GAIKWAD
Date: 2025.04.23
14:50:17 +0530 3. Mr. Dnyndeo Bhujaba Gharat }
Age 49, Occu: Agriculturist }
4. Mr. Sanjay Bhujaba Gharat }
Age 58, Occu: Agriculturist }
5. Smt. Sakhubai Bhujaba Gharat }
Age 53, Occu: Agriculturist }
Nos. 1 to 5 all R/o at Natepute }
(Pune-Pandharpur Road) Tal- }
Malshiras, District-Solapur. }
6. Sou Jayashree Kantilal Magar }
Age 44, Occu: Agriculturist }
R/o at Nimgao (M) Tal-Malshiras, }
Dist-Solapur }
7. Sou Vaishali Pradeep Bondre }
Age 35, Occu: House hold }
R/o at Rangao (Shivajinagar) Tal- }
Indapur, District-Pune }
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8. Shri Dinkar Dhanaji Jagtap }
Age 39, Occu: }
Agriculturist/Advocate R/o At }
Natepute, Tal- Malshras, Dist: } Respondents
Solapur. } (Orig. Defendants)
-------------------
Mr. Ajay Joshi, for the petitioner.
Ms. Manisha Devkar with Siddhi Patil, for the respondent nos.1 to 5.
--------------------
CORAM : N.J. JAMADAR, J.
DATE : 16TH APRIL 2025.
JUDGMENT:
1. Rule.
2. Rule made returnable forthwith and with the consent of the
counsel for the parties heard finally.
3. This petition under Article 227 of the Constitution of India
assails the legality, propriety and correctness of an order dated 31 st July
2024 passed by the learned Civil Judge, Malshiras whereby an
application preferred by the defendant nos. 1 to 5 for the rejection of
the plaint, came to be partly allowed and the petitioner/plaintiff was
directed to pay Court Fee in terms of Section 6(vii) of the Maharashtra
Court Fees Act, 1959 treating the suit land bearing Gat No. 289 as non-
agricultural land, within a period of one month; failing which the
consequences envisaged by order VII Rule 11 of the Code of Civil
Procedure ('Code') would follow.
4. The petitioner has instituted a suit for partition and
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separate possession of his share in the land bearing Gat Nos. 288 and
289 situated at Mauje Natepute, Tal-Malshiras, District- Solapur (the
suit lands) with the assertions that Ganpati Gharat was the common
intestor. He had two sons; Bhujaba and Sahebrao. Plaintiff and
Defendant no 6 are the son and daughter of Sahebrao. Defendant nos.
1 to 5 are successors in interest of Bhujaba. The defendant nos. 7 and 8
are the heirs of Mangal, the deceased sister of the plaintiff. During the
lifetime of the fathers of the plaintiff and defendant nos. 1 to 5, by way
of family arrangement, they started to cultivate separate portions of
the suit lands. There are residential houses of the plaintiff and the
defendants in the suit lands. The defendant nos. 1 to 5 have made
known their intent to sell the suit lands. Therefore, the suit for
partition and separate possession of plaintiff's share in the suit lands.
5. The defendant nos. 1 to 4 filed an application for rejection
of the plaint, inter alia, contending that the defendants have
constructed 13 rooms in Gat No. 289. 20 R land area appurtenant to
the said 13 rooms is used for non-agricultural purposes. The value of
the said residential houses is about Rs.16,00,000/- Therefore, till the
value of the suit claim is corrected and the Court fees is paid on the
market value of the said residential property, the suit cannot be
proceeded with and if the plaintiff commits default in correcting
valuation and payment of Court Fees, the plaint deserves to be rejected
under the provisions Order VII Rule 11(b) of the Code.
6. By the impugned order, the learned Civil Judge directed the
plaintiff to pay Court Fee treating the suit land, Gat No. 289 as non-
agricultural land. The learned Civil Judge was of the view that, though
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there was no record to show that Gat No. 289 was converted into non-
agricultural use, yet from the pleadings of both the parties it emerged
that the land bearing Gat No. 289 was being used for residential
purposes and, therefore, the plaintiff was required to pay Court Fees on
the premise that Gat No. 289 was a non-agricultural land.
7. Mr. Joshi, learned counsel for the petitioner, submitted that
learned Civil Judge committed a manifest error in law in directing the
plaintiff to pay the Court Fees treating the entire Gat No. 289 which
admeasures 2 Hector 66 R as land put to non-agricultural use. What
the plaintiff has asserted in the plaint is that, in an area of around 20
R, there are residential houses of the defendant nos. 1 to 5. Likewise,
there are residential houses of the plaintiff in the suit land. These
assertions, according to Mr. Joshi, however, do not change the
character of the suit lands. The learned Civil Judge, thus could not
have directed the payments of Court Fee treating the entire Gat No.
289 as the land put to non-agricultural use.
8. Mr. Joshi would urge that under the provisions of the
Maharashtra land Revenue Code, 1966 a holder of any land held for
the purpose of agriculture is entitled to erect farm, building or make
any other improvement thereon, for more convenient use of the land.
Therefore, the averments in the plaint that there are residential houses
of the plaintiff and defendant nos. 1 to 5 in the suit lands would not
justify an order to pay Court Fee treating the entire land as a non-
agricultural land.
9. To buttress this submission, Mr. Joshi placed reliance on the
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judgment of the Supreme Court in the case of 'M/s Commercial
Aviation and Travel Company and Ors. Vs. Mrs. Vimla Pannalal 1,
wherein it was enunciated that Order VII Rule 11 (b) contemplates
correct valuation and not approximate correct valuation and such
valuation of the relief has to be determined by the Court. If the Court
cannot determine the correct valuation of the relief claimed, it cannot
require the plaintiff to correct the valuation and, consequently, Order
VII Rule 11(b) will not be applicable.
10. In opposition to this, Ms. Devkar the learned counsel for
the respondents/defendant nos. 1 to 5 endeavoured to support the
impugned order. It was submitted that the plaintiff himself had averred
in the plaint about the existence of the residential houses of both the
plaintiff and defendant nos. 1 to 5 and, yet, omitted to value the suit
claim by taking into account the value of those structures. Moreover,
those structures are not makeshift farmhouses but properly constructed
rooms. Therefore, the plaintiff ought to have computed the value of
those structures and paid Court Fee thereon.
11. Ms. Devkar, however, fairly submitted that the order passed
by the learned Civil Judge treating the entire Gat No. 289 as a non-
agricultural land may not be sustained. This Court may, therefore,
appropriately modify the impugned order to the extent of valuation of
the suit claim and payment of Court Fees on the residential structures,
submitted Ms. Devkar.
12. I am afraid to accede to the submission of Ms. Devkar. Even
1 (1988) AIR SCC 1636
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if the averments in the plaint are taken at par and construed against
the plaintiff, it would appear that the plaintiff had referred to existence
of 13 rooms of the defendant and a farmhouse of the plaintiff in the
suit land bearing Gat No. 289. However, that does not necessarily
change the character of the suit land. If the suit is for partition and
separate possession of a share in a joint family property or to enforce
right to share in any property that is a joint family property, under the
provisions of Section 6 (vii) of the Maharashtra Court Fees Act, 1959
the value of such land shall be deemed to be the value as determined
under Para(v) of the said section. Para (v), in turn, mandates that
where the land is held on settlement for a period not exceeding thirty
years and pays the full assessment to Government, a sum equal to
forty times the survey assessment, would be the value of the land for
the purpose of the Court Fee.
13. Incontrovertibly, the suit is for partition and separate
possession of the plaintiff's purported 1/6 share in the suit land. It is
not put in contest that the suit lands are assessed to land revenue.
14. The facts that there is a building or residential structure
erected over the suit land does not change the character of the suit
land. Under Section 41 of the Maharashtra Land Revenue Code, 'A
holder of any land assessed or held for the purpose of agriculture is
entitled by himself, his servants, tenants, agents or other legal
representatives to erect farm, building, construct wells or tanks or
make any other improvements thereon for the better cultivation of the
land, or its more convenient use for the agricultural purpose'. Thus, the
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existence of residential structures on the suit land by itself does not
justify treating the suit land as a non - agricultural land. At any rate,
the learned Civil Judge could not have directed treating the entire Gat
No. 289 as a non-agricultural land. There is no basis for such
ascertainment of the value of the suit land
15. In the case of 'Kamaleshwar Kishore Singh Vs. Paras nath
Singh and Ors.2, the Supreme Court enunciated that, 'it is well settled
that the court fee has to be paid on the plaint as framed and not on the
plaint as it ought to have been framed unless by astuteness employed
in drafting the plaint the plaintiff has attempted at evading payment of
court fee or unless there be a provision of law requiring the plaintiff to
value the suit and pay the court fee in a manner other than the one
adopted by the plaintiff. The court shall begin with an assumption, for
the purpose of determining the court fees payable on plaint, that the
averments made therein by the plaintiff are correct. Yet, an arbitrary
valuation of the suit property having no basis at all for such valuation
and made so as to evade payment of court fees and fixed for the
purpose of conferring jurisdiction on some court which it does not
have, or depriving the court of jurisdiction which it would otherwise
have, can also be interfered with by the court. It is the substance of the
relief sought for and not the form which will be determinative of the
valuation and payment of court fee. The defence taken in the written
statement may not be relevant for the purpose of deciding the payment
of court fee by the plaintiff. If the plaintiff is ultimately found to have
omitted to seek an essential relief which he ought to have prayed for,
2 (2002) AIR SCC 233
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and without which the relief sought for in the plaint as framed and
filed cannot be allowed to him, the plaintiff shall have to suffer the
dismissal of the suit'.
16. The reliance placed by Mr. Joshi on the judgment in the
case of 'M/s Commercial Aviation and Travel Company , (supra)
appears to be well founded. Unable to determine the correct valuation
of the relief claimed, the learned Civil Judge could not have directed
the plaintiff to correct the valuation treating the entire Gat No. 289 as
a non-agricultural land. Therefore, the entire order being, wholly
unsustainable, deserves to be quashed and set aside.
17. Hence, the following order:
ORDER
i) The petition stands allowed.
ii) The impugned order dated 31st July 2024 stands quashed
and set aside.
iii) The application (Exhibit-39) stands rejected.
No costs.
18. Rule is made absolute to the aforesaid terms.
(N.J. JAMADAR, J)
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