Begum Shah Hussain and Another vs Attar Singh and Others

K.V. Gopalakrishnan Nair, J.—These two civil revisions have been heard together at the request of the counsel on both sides and have,

therefore, to be disposed of by a common judgment.

The Plaintiff who is the Respondent in both these revisions is the same person. He instituted two suits for pre-emption in the Court of the Munsiff

at Srinagar: O.S. No. 311 of 1957 was against the Petitioner in revision No. 41 of 1959 and some others; the other Suit O. Section 312 of 1957

was against the Petitioner in civil revision No. 42 of 1959 and two others. The Petitioner in each of the revisions was impleaded in the respective

original suit as vendee.

The claim in O. Section 311 related to land measuring 4 kanals and 12 marlas bearing survey No. 240 min situate in Khewat No. 35/35 min.

The plaint alleged that although the sale deed obtained by Begum Shah Hussain, Petitioner in C.R. 41 of 1959 recited the consideration for the sale

as Rs. 2,000/ -, the property was really purchased for a sum of Rs. 1,000/ -. The Plaintiff therefore, sought to adopt Rs. 1,000/ - as the basis for

payment of court-fee and also for purposes of jurisdiction. Likewise in the other suit, O. Section 312 of 1957 the Plaintiff averred that the recital in

the sale deed in favour of Ram Nath that the price paid was Rs. 1000/- was a fictitious entry and that the vendee really paid nothing more than Rs.

500/ - which was the true value of the property.

The Plaintiff, on the strength of these allegations, proceeded to pay the court-fee on the sum of Rs. 500/- which, according to him, was also the

value for purpose of jurisdiction. The vendee in both the suits raised objections to the valuation of the suits for purposes of court-fees and

jurisdiction; according to them the price mentioned in the sale deeds was the correct price paid by them. They added that the correct market value

of the property far exceeded the price they paid. They further contended that the amount paid as court-fee was inadequate and that the suit was

beyond the pecuniary jurisdiction of the Munsiff.

An issue was duly framed in both suits on the question of the proper court-fee to be paid and the correct value for purposes of jurisdiction; and

the parties adduced their evidence in respect of it. The trial court appears to have posted the case for arguments to 6-5-59 on which date

arguments were heard in part. When in the ordinary course the arguments were to be resumed the next day the Plaintiff made an application to the

court setting up that the value adopted by him for payment of court-fee and for purpose of jurisdiction was erroneous, that the land covered by

each of the sale deeds formed part of an estate and was separately assessed with land revenue and that, therefore, the provisions of Section 7(v)

(b) of the Court-fees Act applied to the cases.

He also invited the attention of the court specifically to the recitals in the sale deeds relating to the revenue separately assessed on each of the

properties and also to the revenue extracts appended to each of the sale deeds as clearly bearing out that the property formed part of an estate.

The vendees in both the suits filed somewhat elaborate objections to the applications made by the Plaintiff. They took the stand that an

application at such a belated stage seeking to import an altogether new basis in respect of jurisdiction value was not permissible under the law and

that the provisions of Section 7(v)(b) of the Court-fees Act could not be availed of by the Plaintiff. The trial court, after considering the objections

preferred by the vendees, passed an order on 8-5-1959 accepting the applications of the Plaintiff and holding that the suits fell within its pecuniary

jurisdiction and that the Plaintiff was not liable to pay any additional court-fee on the plaints. It is this order which is sought to be canvassed in

revision before me by the learned Counsel for the Petitioners-vendees.

Mr. S.L. Kaul appearing for the Petitioners urged very strenuously that the trial court was in error in allowing the Plaintiff to change his stand

regarding the valuation for purposes of court-fee and jurisdiction at so late a stage. This argument does not, however, appeal to me. The very sale

deeds in favour of the vendees show that the property purchased by them was separately assessed with land revenue; the revenue extracts which

the vendees have taken care to get attached to the sale deeds also show that the property purchased by them formed part on an estate. In the

circumstances, it is difficult to see how the vendees can pretend that any surprise was sprung upon them by the Plaintiff by making the applications.

The fact appears to be that the Plaintiff did not understand the correct position to begin with; he went on the wrong track for a considerable time

until on 7-5-59 he awakened to the true position and made an application to the court to be allowed to do what he ought to have done at the

inception. Thus, the ignorance or bungling on the part of the Plaintiff appears to have been the only ground for the vendees to say that the Plaintiff

ought not to have been allowed to change his basis of valuation of the; suits at a later stage. Mere delay on the part of a Plaintiff is not sufficient to

put him out of court. No prejudice can be said to be caused to the Defendants-Petitioners in a case like this.

That they were not allowed to take advantage of the folly of the opposite side is not the same as saying they have been subjected to real prejudice.

I, therefore, am of the view that the lower court was right in entertaining the applications made by the Plaintiff, bringing to its notice the true basis

for ascertaining the court-fee and jurisdictional value of the suits.

The other objection taken on behalf of the Petitioners is that the lower court ought to have given them an opportunity to show that the property

covered by each of the sale deeds did not form part of an estate and was not separately assessed with land revenue. But no such specific or

pointed objection appears to have been taken by the vendees in the court below. In their somewhat long objections one is unable to see anything

which would indicate that they really believed that the property covered by either of the sale deeds did not form part of an estate or was not

separately, assessed with land revenue. The learned Counsel for the Petitioners vendees has repeatedly drawn my attention to a brief passage in

the counter-objections of the vendees to the effect that the provisions of Section 7(v)(b) could have no application to the case.

Such a broad and vague allegation cannot be construed to amount to a specific denial of the express facts set up in the application of the Plaintiff,

namely, that the property in question did form part of an estate and was separately assessed with land revenue. Such plain and pointed statements

of fact in the application should normally have evoked equally clear and pointed denials, if the vendees really believed that they could truthfully

make such denials. It is all too futile, in my view, to rely upon a broad and amnibus allegation regarding the applicability of Section 7(v)(b) as

atoning for the omission to allege specifically the relevant and material facts in the objections filed by the vendees.

This aspect apart, one would find it extremely difficult to give credence to the somewhat faint allegation made before me on behalf of the

Petitioners that the property is not part of an estate and is not separately assessed with land revenue. The recitals in the sale deeds as also the

revenue extracts which the vendee in each case has been careful enough to obtain from the vendors tell an entirely opposite story. I find it

extremely difficult to say that the recitals in the sale deeds or those in the revenue extracts are erroneous; in fact the vendees who claim under these

very sale deeds ought to be expected to stand by those recitals.

But even if one assumes an exceptional situation that in spite of the care and caution apparently taken by the vendees and vendors, wrong recitals

as to such material facts crept in the sale deeds, one would expect the vendees to say so specifically in the court below. They have not done so.

This considerably reinforces the conclusion that the case put forward by the Plaintiff that the property in each suit formed part of an estate and was

separately assessed to land revenue is eminently true.

The last argument on behalf of the Petitioners is that the expression 'estate' occurring in Section 7(v)(b) of the Court-fees Act ought to be

understood as a block of agricultural land. The words of the provision are ""where the land forms an entire estate"". Therefore, we have to

understand the argument of the Petitioners as amounting to the contention that ""land"" means only agricultural land. I am unable to find any warrant

for this proposition anywhere in the Court-fees Act. Nor have I been referred to any authority in support of it. The only decision cited by the

Petitioners' learned Counsel is Shah Mohammad v. Mt. Pairi AIR 1936 Lah 202; but that decision only sought to interpret the meaning of the

provisions of Section 15 of the Punjab Pre-emption Act. I am not able to see anything in common between the Court-fees Act and the Punjab

Pre-emption Act.

Merely because in an entirely different context and according to the scheme of a different enactment particular words were construed by a court to

mean a certain thing, it will be idle to urge that similar words occurring in another context and in a dissimilar enactment should be given the same

construction. On the other hand, Mr. Sunder Lal appearing for the Respondents has brought to my notice the decision in Purshotam Lal v. Piyare

Lal AIR 1948 EP 9. In that case, arguments similar to those advanced by the Petitioner's counsel before me were urged before the Punjab. High

Court and were repelled. In this case the Petitioners' counsel has urged before me that the land in question was once an agricultural land but is now

not being cultivated and is capable of being used as a building site. He, therefore, would say that such a land cannot come within the scope of

Section 7(v)(b). It was an almost identical contention that was rejected in AIR 1948 EP 9. Thus, the argument of the Petitioners' learned Counsel

on this part of the case has to fail.

It follows from the foregoing that the revisions are devoid of merit and have to be dismissed. The lower court will direct the Plaintiff in each case

to amend the plaint regarding the valuation for purposes of court-fee and jurisdiction in the light of the applications made by him on 7-5-59 which

were rightly accepted by the trial court.

In the circumstances of this case I makes no order as to costs.