Bhajan Dass vs Ranbir Singh and Another

D.B. Lal, J.—This petition in revision arises out of an order dated July 16, 1971, of the learned Sub-Judge, Rohru, whereby in a suit for possession of land he has directed the Plaintiffs Bhajan Dass and another to value the plaint for purposes of court-fee u/s 7(v)(e) of the Court Fees Act and to pay the court-fee stamp on the market value treating the orchard standing thereon as ''garden'' within the meaning of that provision.

According to plaint, the dispute related to 7 bighas, 17 biswas revenue-paying land situate in Tika Chilala of Tehsil Rohru. It was slated that the Defendant Ranbir had taken forcible possession and that he may be dispossessed and possession be delivered to the Plaintiffs. The value for purposes of court-fee was fixed u/s 7(v)(a) of the Himachal Pradesh Court Fees Act, 1968, at 10-times the revenue so payable for the land. In the written statement it was pleaded that 150 apple trees, 20 apricot trees and 10 walnut trees were already planted on the land and it was an orchard which could be treated as ''garden'' within the meaning of Section 7(v)(e) and as such the court-fee was payable on market value. The learned Subordinate Judge accordingly held that the disputed land was a garden and as such the court-fee paid was deficient.

The present revision is directed against that order of the learned Subordinate Judge.

The revision was formerly listed before the learned Chief Justice who referred it to a larger Bench because there was a controversy amongst various High Courts as to whether the expression ''garden'' u/s 7(v)(e) will include an orchard. That is how the present case has been referred to this Division Bench for decision.

Section 7(v) is in the following terms:

(v) In suits for the possession of land, houses and gardens according to the value of the subject-matter; and such value shall be deemed to be-

where the subject-matter is land, and-

(a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Collector''s register as separately assessed with such revenue,

and such revenue is permanently settled ten-times the revenue so payable;

....

(e) Where the subject-matter is a house or garden according to the market-value of the house or garden.

A clear distinction has thus been drawn between land, house or garden. It is much less true to say that if a building is constructed over land it is a house and if fruit trees are planted over land it is a garden. Thus land can subsequently assume the shape of house or garden, irrespective of the fact that it pays or not the land revenue. Therefore, the deciding factor will not be the payment of land revenue but the nature of conversion of land either into a house or a garden.

The short question is: whether an orchard can be considered a garden. As contra-distinguished from land, orchard can be a garden and not land. This also seems to be apparent from the language used in the Section.

According to the cardinal rule of interpretation, grammatical meaning has to be assigned to a plain language used in the section. There is no ambiguity in the language. If flowers or fruit trees are planted on land, it will assume the shape of a garden and will cease to be land. This is so clear from the language of Section 7(v).

An attempt was made to draw some meaning from the definition of ''land'' as provided for in the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act where orchard is included in land, and Land Acquisition Act where house is included in land. The definition of ''land'' provided in those special Acts cannot be imported to construe the meaning of that word used in any general Act. The very scheme of those Acts is different than the scheme of the Court Fees Act. One deals with the abolition of big landed estates, while the other deals with the acquisition of land and house for a public purpose. Therefore, the definition of ''land'' in those special Acts cannot be availed of for interpreting the expressions ''land'', ''house'' or ''garden'', as used in the Himachal Pradesh Court Fees Act. Then what is the meaning which is to be given to ''orchard'' or ''garden'' as contra-distinguished from ''land''.

One siring of authorities have referred to Audathodan Moidin and Ors. v. Pullambath Manually and Anr. ILR 12 Mad 301, a Full Bench decision of that Court, wherein a paramba (cocoanut garden) was treated as land for purposes of court-fee. The learned Judges observed that the term ''garden'' was meant to include only unassessed lands, such as gardens intended for ornament and pleasure, or pepper and sugarcane gardens and the like, which are also unassessed. The learned Judges further held that the term ''garden'' is primarily used in the English sense-ornamental or pleasure or vegetable-and that parambas did not ordinarily come under that category. This decision was followed in Kullappa Goundan v. Abdur Rahim Sahit AIR 1918 Mad 805 and Vai Kumari Vayyapuri Vathiar v. R. Somianaryana Iyengar AIR 1948 Mad 344 and also in Kharka and Ors. v. Yellappa AIR 1953 Hyd 28. In Mutntaz Begum v. Aman Ullah Khan and Ors. AIR 1964 K&H 34 following the Madras decision, a Division Bench of that Court took a similar view. That Bench also referred to the definition of the term ''garden'' in Webster''s International Dictionary and Stroud''s Judicial Dictionary. In the definition provided for in Webster''s, the emphasis was given to a plot of cultivable ground adjacent to a dwelling house. According to the meaning, the cultivable ground may contain herbs, flowers, fruit or vegetable for "household use". It was, therefore, inferred that a ''garden'' would usually be appertinent to a dwelling house and the flowers and fruit or vegetable plants growing thereon should be for "household use". Thus an orchard or a grove were excluded from the definition of garden. The Jammu and Kashmir view was upheld in Damodar Dass and Ors. v. Shanti Swaroop and Ors. 1969 A.L.J. 593 and also in Ramachandra Gajanana Hegde v. Ganapati Umamaheshwar Hegde and Ors. AIR 1971 Mys 336. In the Jammu and Kashmir case (supra), obviously their Lordships were not considering vast tracts of areas containing fruit trees. Therefore, they were not called upon to decide for an orchard as such to be considered a ''garden'' or merely a ''land''. The Mysore decision (supra) was essentially based upon the ruling given by the Jammu and Kashmir High Court. In fact, in our opinion, and with greatest respect to the learned Judges, the mistake emerged out of the notion given by ILR 12 Mad 301 (supra) that the term ''garden'' should be used in the English sense, meaning thereby a small plot of land appended to a dwelling house meant for vegetable or fruit plants for household consumption. In our humble opinion that view may not be correct in the present set up. Where vast tracts of land are used as orchard and valuable fruit trees are growing, the area will hardly retain the character of revenue-paying land and not a garden. Such crops which are usually raised on a revenue-paying land are, of course, excluded. In the instant case, apple, apricot and walnut trees are growing. These are all valuable trees and the crop is meant for sale. It is difficult to assume that apple, apricot or walnut trees are the usual crops raised on revenue-paying land. These cannot be classified into the groups which are considered cereal crops. Even in the Webster''s Third New International Dictionary, the term ''orchard'' has been defined as a garden, or trees of such a plantation, or a grove of solid fruit-bearing trees.

The view which we have taken stands fortified by a number of other judicial decisions; the latest being Shri Madan Lal and Ors. v. Shri Gian Chand and Ors. 1970 MLR 284 which is a direct case on the question. It is in fact a Division Bench decision of Himachal Bench of Delhi High Court. The case dealt with an orchard in Himachal Pradesh. It was held that an orchard has the same meaning as ''garden'' used in Section 7(v)(e) of the Himachal Pradesh Court Fees Act. We are in respectful agreement with the reasonings of the learned Judges. Besides this, there are other authorities: Shri Dhar v. Amarnath and Anr. 1908 P&R 146, Mst. Bhag Bhari and Ors. v. Jawahir Singh and Ors. 1914 P&R 71 , Jogendra Nath Das Vs. Sarup Chand-Hukum Chand, Firm and Another, , Jawala Devi v. Ahmad Hasan AIR 1938 Oudh 40 and Baldeo Gulabrao and Ors. v. Abdul Hafiz AIR 1950 Nag 249. In the Oudh case (supra), a guava grove was held to be a garden. In the Nagpur case (supra), it was held that the expression ''garden'' is used in the Court Fees Act in its extensive sense of including all gardens and not merely those which are attached to houses. In that case the garden in suit was an orange garden and it was held that it clearly fell within Clause (e) of Sub-clause (v) of Section 7. A Similar view was taken in the Calcutta case (Supra). In 146 Punjab Records 1908 (supra) the term ''garden'' as used in Section 7(v)(e) of the Court Fees Act was held to include fruit garden even though the land under it may have been assessed to land revenue.

We are, therefore, confident to hold that the term ''garden'' used in Section 7(v)(e) will include an orchard in Himachal Pradesh and the valuation for purposes of Court-fee will be the market value of such orchard. As such the order of the learned Subordinate Judge was perfectly correct and must be upheld.

The revision is, therefore, dismissed. However, in this revision we leave the parties to bear their own costs.