Bombay High Court

DNYANDEO NAMDEO GADAKH AND OTHERSversusSAMBHAJI MURLIDHAR GADAKH DECEASED THROUGH LRS DEVENDRA SAMBAJI GADAKH AND ANOTHER

Disposal: DISPOSED OFF

Holding

The application under Order VII Rule 11 was not maintainable as the plaint did not demonstrate improper valuation, and the order quashing the suit was set aside.

Summary

The petitioners filed a suit for recovery of possession of two parcels of land alleging encroachment by the respondents. The respondents moved an application under Order VII Rule 11 of the Code of Civil Procedure, claiming the suit was under‑valued because a structure had been erected on a different parcel (No.2672) and that the plaintiffs should pay court fees based on that valuation. The petitioners contended that the suit sought only possession of parcels No.2671 and No.2676 and that the valuation of the structure on No.2672 was irrelevant. The High Court examined the pleadings and held that improper valuation must be evident from the plaint itself, which it was not, and that the defence cannot be used to invoke Order VII Rule 11. Consequently, the court quashed the order of the trial court that had entertained the valuation application and allowed the writ petition, permitting the suit to proceed on its merits.

Issues considered

Whether the suit is improperly valued and liable to be rejected under Order VII Rule 11 of the CPC.
Whether the presence of a structure on an encroached parcel obliges the plaintiff to pay court fees based on its valuation.
Whether the writ petition challenging the trial court's order under Order VII Rule 11 is maintainable.

Legislation cited

Code of Civil Procedure, 1908 — s. Order VII Rule 11

Subjects

encroachment
possession
valuation
court fees
Order VII Rule 11
Civil Procedure Code
writ petition
property dispute

Judgment

2026:BHC-AUG:38779

(1) 27 WP 3624 OF 2023

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

27 WRIT PETITION NO. 3624 OF 2023

1. Dnyandeo S/o Namdeo Gadakh,
Age: 50 years, Occup. Agriculturist,
R/o: Sonai, Ta. Newasa, At Post Sonai
District Ahmednagar

2. Changdev S/o Namdeo Gadakh,
Age: 38 years, Occup. Agriculturist,
R/o: As above

3. Kundlik S/o Namdeo Gadakh,
Age: 35 years, Occup. Agriculturist,
R/o: As above

4. Smt. Kesharbai W/o Namdeo Gadakh,
Age: 70 years, Occup. Agriculturist,
R/o: As above

5. Amrutrao S/o Sahebrao Gadakh,
Age: 40 years, Occup. Agriculturist,
R/o: Sonai, Ta. Newasa, At Post. Sonai
District Ahmednagar

6. Subhash S/o Sahebrao Gadakh,
Age: 38 years, Occup. Agriculturist,
R/o: As above

7. Smt. Sunita Suresh Shelke,
Age: 30 years, Occup. Agriculturist,
R/o: Shirdi, Ta. Rahata,
District Ahmednagar ...PETITIONERS
(Original Plaintiffs)

VERSUS

1. Sambhaji Murlidhar Gadakh
Deceased through his L.Rs
(2) 27 WP 3624 OF 2023

1-A Devendra S/o Sambaji Gadakh,
Age: 34 years, Occup. Agriculturist,
R/o: Sonai, Ta. Newasa, At. Post Sonai
District Ahmednagar

1-B. Smt. Gayatri Pramod Chaudhari,
Age: 37 years, Occup. Agriculturist,
R/o: Pathare Wasti Shingve Sakarwadi,
Ta. Rahata, District Ahmednagar

1-C. Smt. Poonam Sambhaji Gadakh
Age: 31 years, Occup. Household,
R/o: Dr. Pradeip Narayan Gandhale,
D-1 ICAR National Institute of High
Security Animal Diseases, Anandnagar,
Huzur Bhopa Madhya Pradesh-12

1-D. Smt. Priyanka Mitesh Dighe,
Age: 28 years, Occup. Agril & Household,
R/o: Hanumantgrao, Post. Pathare (Bk),
Tq. Rahata, District Ahmednagar
At present Flat No. FG-6 Agale
Co-operative Housing Society,
Agale Ground Floor, Fathorda,
Madgaon Goa

2. Smt. Sushila S/o Sambaji Gadakh,
Age: 50 years, Occup. Agriculturist,
R/o: Sonai, Ta. Newasa, At Post. Sonai
District Ahmednagar ....RESPONDENTS
(Original defendants)

-----------------------------------------------------------------------------------------------------------
Mr. Vijay B. Jagtap, Advocate for the Petitioners
Mr. Rahul R. Karpe, Advocate for Respondents Nos.1(a) to 1(d) and 2
-----------------------------------------------------------------------------------------------------------

CORAM : AJIT B. KADETHANKAR, J.
DATE : 24.08.2026
(3) 27 WP 3624 OF 2023

ORAL JUDGMENT :-

. Rule. Rule made returnable forthwith. By consent of the parties,

the petition is taken up for final disposal.

2. In a suit filed by the petitioners against the respondents seeking

recovery of the encroached portion of their property, the defendants filed an

application under Order VII Rule 11 of the Code of Civil Procedure. The prayer

clauses in the plaint show that the petitioners claimed a decree for recovery of

possession from the defendants in respect of the properties described at

Paragraph Nos.1B and 1D. Paragraph 1B refers to property bearing No.2671

out of Gat No.933 situated at Village Sonai, Tahsil Nevasa, District

Ahmednagar, whereas Paragraph 1D refers to property bearing No.2676 out of

Gat No.938 situated at Village Sonai, Tahsil Nevasa, District Ahmednagar.

2. The defendants appeared in the suit and filed an application at

Exhibit-65 under Order VII Rule 11 of the Code of Civil Procedure. It was

submitted by the defendants that the suit was not properly valued and was

under-valued. It was contended that a constructed structure had been raised

on the suit property, the valuation of which was approximately

Rs.26,20,922/-. Despite such valuation, the suit was under-valued for only

Rs.1,000/-. In view thereof, an application was filed seeking a direction to the

plaintiffs/petitioners to properly value the suit and pay court fees
(4) 27 WP 3624 OF 2023

corresponding to the correct valuation and on failure, the plaint be rejected.

The said application was opposed by the plaintiffs/present petitioners.

3. Mr. Jagtap, learned Advocate for the petitioners would

vehemently submit that the application was misconceived. He has taken me

through the prayer clauses of the plaint which show that no relief is claimed in

respect of property bearing No.2672. He would submit that the alleged

construction is standing on property bearing No.2672 in respect of which no

relief is claimed in the plaint. Hence, the petitioners cannot be said to have

wrongly valued the suit or that the suit suffers from inadequate or deficient

valuation. Mr. Jagtap, learned Advocate submits that the suit is for recovery of

possession of a particular area and not in respect of any structure standing

thereon whether the same is situated on property bearing No.2672, 2671 or

2667. Mr. Jagtap, learned Advocate, therefore, prays for allowing the writ

petition.

4. Mr. R. R. Karpe, learned Advocate representing the

respondents/defendants would submit that the objection was rightly raised

under Order VII Rule 11 of the Code of Civil Procedure. He would submit that

the learned Trial Court has rightly considered the scope of Order VII Rule 11

of the Code of Civil Procedure and has issued appropriate directions. It is

lastly submitted that it is incumbent upon the plaintiffs to comply with the
(5) 27 WP 3624 OF 2023

directions issued by the learned Trial Court under Order VII Rule 11 of the

Code of Civil Procedure by correctly valuing the suit and paying proper court

fees failing which the plaint would be liable to be rejected. With this, learned

Advocate for the respondents/defendants prays for dismissal of the writ

petition. He points out the pleadings in the plaint contending construction at

property bearing No. 2671 and would justify the application.

5. I have heard both the learned Advocates for the respective parties

extensively. Apparently, from the copy of the plaint produced before me, it

appears that the plaintiffs/petitioners have claimed a decree against the

defendants in respect of only the properties described at Paragraph Nos.1B

and 1D out of the properties mentioned at Paragraph 1 of the Exhibit-A i.e. the

plaint.

6. Now, coming to the application filed by the defendants, it is

sought to be submitted that the plaintiffs/petitioners have referred to certain

construction carried out at the behest of the present defendants on property

bearing No.2671. In view thereof, it is sought to be submitted that the

plaintiffs/petitioners having brought on record the fact that there is a

construction on the property ought to have properly valued the suit and

accordingly, paid the court fee in accordance with the valuation of the suit

property.
(6) 27 WP 3624 OF 2023

7. It is pertinent to note that this is a case of encroachment. The

plaintiffs/petitioners have contended that the respondents/defendants have

encroached upon their land and therefore, a decree for recovery of possession

has been sought. Even going by the pleadings of the plaintiffs as contended, it

is after causing encroachment that the defendants have erected some structure

on the encroached portion at their own behest.

8. The learned Judge of the Trial Court has observed that property

No.1958/15 is situated in Gat No.2672, the valuation of which stands at

Rs.26,20,922/- as per the valuation report, and for which the plaintiffs ought

to have paid court fees.

9. May it be, this Court agrees with the contention of the learned

Advocate for the petitioners that if the suit is restricted only to the extent of

the properties described at Paragraph Nos.1B and 1D, those properties do not

refer to property bearing No.2672 as recorded by the learned Judge of the

Trial Court for which the valuation report was submitted. More so, when a suit

for recovery of possession is filed on the basis of the averments as to

encroachment by the defendants, the plaintiffs may not be required to pay

court fees on the valuation of the structure which has been erected on the

encroached portion at the behest of the defendants. The application under

Order VII Rule 11 of Civil Procedure Code needs to be adjudicated only on the
(7) 27 WP 3624 OF 2023

basis of the pleadings in the plaint. Defence raised in written statement does

not give rise to a prayer for rejection of the plaint under Order VII Rule 11 of

Civil Procedure Code. During the hearing, this could be an issue, but for

invoking Order VII Rule 11 of Civil Procedure Code, improper

valuation/deficit valuation must be evident from the plaint itself. Such is not

the case in hand. On the basis of the defence, the provisions of Order VII Rule

11 of Civil Procedure Code are sought to be invoked. I do not subscribe to

such contentions.

10. In view of the above, I find that the petition deserves to be

allowed and the impugned order is liable to be quashed and set aside.

11. Accordingly, the Writ Petition stands allowed.

12. The impugned order dated 21.01.2023 passed by the learned Civil

Judge Senior Division, Nevasa in Regular Civil Suit No.595 of 2009 on an

application below Exhibit-65 is hereby quashed and set aside.

13. The suit shall proceed in accordance with law.

14. Rule is made absolute in above terms.

[AJIT B. KADETHANKAR, J.]
PRW

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