Bombay High Court
Smt. Ujjwala Wd/O Vijay Lekurwale vs Shri. Ajay S/O. Wamanrao Gadge on 22 July, 2025
2025:BHC-NAG:7034
1 cra.12.24-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CIVIL REVISION APPLICATION NO. 12 OF 2024
Smt. Ujjwala wd/o. Vijay Lekurwale,
Aged about 56 yrs. Occu. Household,
R/o. Plot No.17, L.I.C. Colony, R.P.T.S. ... APPLICANT
Road, Nagpur - 440015 (Ori. Defendant on R.A.)
...VERSUS...
Shri. Ajay s/o. Wamanrao Gadge,
Aged about 61 yrs., Occu. Retired,
R/o. Plot No.118, Surendra Nagar, ...NON-APPLICANT
Nagpur - 440015. (Ori. Plaintiff on R.A.)
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Mr. Subhash Kalbande, Advocate for Applicant.
Mr. J. M. Gandhi, Advocate for Non-applicant.
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CORAM : MRS. VRUSHALI V. JOSHI, J.
JUDGMENT RESERVED ON : 15.07.2025
JUDGMENT PRONOUNCED ON : 22.07.2025
JUDGMENT :
1. Rule. Rule is made returnable forthwith. Heard finally by
consent of learned Counsel appearing for the parties.
2. The applicant is challenging the order passed on 18.09.2023
by the 3rd Jt. Civil Judge Junior Division, Nagpur thereby rejecting the
application filed by the defendant under Order VII Rule 11(b) and (c) of
the Code of Civil Procedure.
3. The facts in brief are as under :
2 cra.12.24-J.odt
The non-applicant in this application has filed the suit for
Declaration, Permanent, Perpetual, Prohibitory and Mandatory Injunction
against the defendant i.e. the applicant. According to the applicant, the
plaintiff is seeking declaration of ownership and possession over the suit
property under the Will executed by late Smt. Kaushalyabai Gadge. By
clever drafting, he has prayed for mandatory injunction and not paid the
court fee of prayer for possession. The plaintiff has prayed for the
mandatory injunction and negative declaration is prayed, second prayer
is, as defendant has no right, title or interest in the property and by way
of mandatory injunction, direct the defendant to remove herself along
with her children from the suit house. By these prayers, the plaintiff is
indirectly praying for possession of the suit property. Therefore, he is to
pay the required court fee according to Section 6(v) of the Bombay Court
Fees Act, 1959 and according to market value of the suit property. The
objection is that the plaintiff has not valued the suit property and not
paid the proper court fee according to the market value. The another
objection raised by the applicant in his application is that the matter is
pending before the Civil Judge Junior Division and the suit valued is
more than one crore, which exceeds the pecuniary jurisdiction of the
Judicial Magistrate First Class Court and, therefore, the Court has no
pecuniary jurisdiction to decide the issue of possession of the suit
property.
3 cra.12.24-J.odt
4. The non-applicant has opposed the application stating that
though the defendant is in possession of the suit property, she is a
trespasser, she has no any right, title over the suit property. The
trespasser is trying to claim the rights against the true owner and
therefore, the said trespasser cannot be entertained.
5. The learned Counsel for the non-applicants has stated that in
the entire plaint, the plaintiff has nowhere admitted the possession of the
suit property and has stated about the status of the defendant as a
trespasser. Hence, prayed to reject the application.
6. Heard both the learned Counsel for the parties.
7. The applicant has come with the contention that the plaintiff
is praying for possession. He has relied on the judgment of this Court in
the matter of Madhavrao Sitaram Kohali and Ors. Vs. State of
Maharashtra reported in 1978 Mh.L.J. 379, wherein it is observed in
paragraph No.23 as under :
"23. These observations I think, are apposite in the present case
also, and the real nature of the relief which the plaintiff is
seeking and which is the whole substantive and main relief is the
relief for possession. The declaration that he has title or
subsisting title to the property in question, or that the subject
matter of the suit is not covered by the provisions of M. P.
Abolition of Proprietary Rights Act is not a declaration which is
necessary or obligatory before the relief for possession can be
had. As I have pointed out, a person suing for possession has to
prove not only the title on which he is suing, but that the said
title still subsists. If the M. P, Abolition of Proprietary Rights Act
4 cra.12.24-J.odt
has the effect of extinguishing the plaintiffs' title, the foundation
of the plaintiffs' claim itself would be knocked out. In that event
the plaintiffs will not be entitled to possession. But it is
unnecessary for him to ask for any declaration, and he has not
asked for any such declaration, touching the effect of the M. P.
Abolition of Proprietary Rights Act. Besides, as I have pointed
out, this Court as well as the Supreme Court having held that
this was a suit for possession of land, and, therefore, covered by
section 6(i)(v) of the Act, the Trial Judge could not travel
beyond those findings and hold that the nature of the suit was
different. All that it had got to find out was the mode or method
of valuation of the land."
8. He has also relied on the judgment of this Court in the
matter of Harshita Shivdasani Vs. Vijaykumar Shivdasani reported in
2013(6) Mh.L.J. 447, wherein it is held in paragraph Nos.14 and 15 as
under :
"14. Consequently when the Plaintiff fails to value the relief of
possession, he would have to value it as on the date of the
valuation if he desired to prosecute the same suit/petition for
that relief also. It would be an abuse to allow the suit to be
pending for as long as 13 years and then allow the plaintiff to
value it as on the date of filing of the suit.
15. The suit was filed on fixed Court fee of Rs.100/- which was
available to plaintiff for the relief of declaration of nullity of his
marriage alone. The learned Judge has correctly held that the
prayer of possession is required to be separately valued and that
it is to be valued as per market rate of the suit property. Since it
was never valued, it would have to be valued as on the date of
the valuation. It is an abuse of Court process for a party to
smuggle in a prayer for possession in a petition for declaration of
nullity of marriage for which alone the fixed Ccourt fee is
specified."
9. The Trial Court has considered the judgment of the Hon'ble
Apex Court in the matter of Bharat Bhushan Gupta Vs. Pratap Narain
5 cra.12.24-J.odt
Verma and Anr. reported in (2022) 8 SCC 333, wherein the Court has
considered that for the relief of mandatory injunction, a suit can be filed
by the title-holder for recovery of possession or it can be one of ejectment
of an ex-lessee or for mandatory injunction requiring a person to remove
himself or it can be a suit as under Section 6 of the Specific Relief Act to
recover possession.
10. He has also relied on the judgment of the Hon'ble Apex
Court in the matter of Madan Mohan Singh Vs. Ved Prakash Arya
reported in (2021) 5 SCC 456, wherein the Hon'ble Apex Court has
stated that, "Permanent and mandatory injunction restraining defendant
from using premises in question and directing defendant to restore
possession thereof to plaintiff - Respondent - defendant not in
possession of premises in his own right either as a tenant or a licensee,
his possession is only as an employee of plaintiff - Held, appellant-
plaintiff entitled to decree of mandatory injunction".
11. On perusal of the application, it appears that, it is filed only
objecting pecuniary jurisdiction. The prayer of the applicant is that the
Court has no pecuniary jurisdiction to entertain the suit. Nowhere it is
mentioned that it is for possession of the suit property. On perusal of the
plaint, it appears that the applicant is occupying the suit premises as a
permissive occupier. The suit property is owned by the plaintiff on the
basis of Will, which was executed by the paternal aunt of the plaintiff.
6 cra.12.24-J.odt
The defendant is the wife of the nephew of one Kaushalyabai, who
entered the house to take care of said Kaushalyabai and thereafter, she
continued to stay in the premises. She has also denied the Will. It is the
settled position of law, being third person, she cannot challenge the Will.
As the plaintiff can ask for the mandatory injunction to remove from the
suit premises, it is not for possession, therefore, the question of valuation
of the suit property does not arise. I agree with the observations made by
the Trial Court and the suit is property valued, the Civil Revision
Application stands dismissed.
Rule is discharged.
(MRS. VRUSHALI V. JOSHI, J.)
RGurnule
Signed by: Mrs. R.M. MANDADE
Designation: PA To Honourable Judge
Date: 22/07/2025 17:50:34
