Bodhraj and another vs Shanker Dass and others

J. N. Bhat, J.—This is a revision petition directed against the order of the City Judge, Jammu, dated 17-12-1970 whereby he has decided

that the valuation of Rs. 130/- fixed by the plaintiffs for purposes of jurisdiction in this case, is proper. The plaintiffs respondents brought a

declaratory suit with the prayer that four shops mentioned in a sale deed dated 26-11-1967 registered on 27-11-1967 executed by the defendant-

petitioner No. 2 in favour of Bodhraj defendant petitioner No. 1 be declared their property and defendant No. 2 had no power to alienate these as

well as for a declaration that the sale deed mentioned above be declared void and ineffective against the interests of the plaintiffs. In para No. 9 of

the plaint, the valuation for purposes of court-fee was mentioned Rs. 10/- (fixed court-fee) and for jurisdiction purposes it was fixed as Rs. 130/-.

In reply to this plea the defendants in their written statement stated that the court-fee was payable on the market value of the property and as the

plaintiffs were out of possession they should have brought a suit for possession instead of a suit for declaration only.

Two preliminary issues were struck on 31-7-1968 and parties were directed to produce their evidence. It appears that after some time it was

pointed out to the court by means of an application that another preliminary issue should be framed and consequently on 24-1-1970 another issue

was struck, numbered as Issue No. 3 which was to the following effect:-

Whether the valuation for the purposes of jurisdiction has not been correctly fixed and the present suit is beyond the jurisdiction of this Court? O.

P. Ds."".

The learned counsel for the parties argued the point without producing any evidence with regard to it and ultimately the trial court came to the

conclusion in the order under revision, that the valuation had been correctly fixed as it was the option of the plaintiffs to fix the valuation for

jurisdiction purposes because no rules had been made in this behalf. This preliminary issue was as such decided against the defendants. It is against

this order that the defendants, feeling aggrieved, have come up in revision to this court.

I have heard the learned counsel for the parties.

Before dealing with the facts of this case, I would like to make certain general observations with respect to some of the provisions of the Court-

fees and Suits Valuation Acts. In my opinion the Court-fees Act requires serious reconsideration and re-drafting. It is full of anomalies and

hypertechnical provisions for instance, I might point out the provisions of Section 7 (v). These relate to suits for possession of lands, houses, and

gardens and further lay down where the subject-matter is land and it forms an entire estate or a definite share of an estate, paying annual revenue to

Government or forms part of such estate, and is recorded as separately assessed with such revenue the court-fee payable would be on eight times

the revenue as payable. Under sub-section (c) of this very section when the land does not Pay such revenue or has been partially exempted from

such payment, is a Jagir or a Dharmarth property or is charged with any fixed payment in lieu of such revenue and net profits have arisen from the

land during the year next before the date of presenting the plaint fifteen times such net profit but where no such net profits have arisen therefrom-the

amount at which the court shall estimate the land with reference to the value of similar land in the neighbourhood; and (d) where the land forms part

of an estate paying revenue to Government, but it is not a definite share of such estate and is not separately assessed-the market value of the land.

In all these cases the subject-matter of suit is land. In the first place there is conflict of judicial opinion as to what is a 'definite share'. Some

authorities say that a definite share means one-half, one-fourth, one-third so on and so forth and shares like 3/10, 5/18, 9/37 are not definite

shares. Then there is a controversy about the words ""separate assessment"". Now let us illustrate the anomalies. Suppose a certain khewat consists

of ten kanals. If one half of it is the subject-matter of litigation the court-fee payable will be on eight times the land revenue thereof and the

jurisdictional value would be fifty times the land revenue. Suppose 7/10 of this very land is the subject-matter of dispute. In that case the court-fee

and jurisdictional value would be the market value of the land. On the face of it this discrimination is artificial and meaningless, different parts of the

land being valued differently for purposes of court-fee and jurisdiction. Again if the land is exempted from land-revenue or is Dharmarth property

or a Jagir, then there is a different method of its computation of value for purposes of court-fee and jurisdiction which are fifteen times the net

profit. These anomalies can be further amplified and illustrated.

In my opinion if any rule was to be laid down about land it ought to have been a uniform rule whether the land was assessed to land revenue,

formed a definite share thereof or did not form a definite share thereof. One can quote a whole host of decided cases to bring out contradictions

and anomalies resulting from such drafting. To avoid these anomalies and difficulties one uniform rule i.e., market value of the land should have

been the criterion for fixing the valuation for court-fee. Similarly even in suits falling u/s 7 (iv) of the Court-fees Act, the method of fixing valuation is

very artificial; for instance it is upto the plaintiff to fix any valuation of the suit for purposes of court-fee under this provision. I may mention only two

classes of cases under this sub-section. To obtain a declaratory decree or order where consequential relief is prayed (c); or to obtain an injunction

(d). In these cases the plaintiff is empowered to fix his own valuation for purposes of court-fee and u/s 8 of the Suits Valuation Act, the value for

purposes of court-fee in such suits and the value for purposes of jurisdiction has to be the same. In actual practice we find that suits relating to huge

property worth lacs of Rupees are valued under these provisions at a fantastic figure. During my experience at the bar and as a Judge, I have

seldom seen a suit for injunction u/s 7 (d) of the Court-fees Act or a suit for declaratory decree with a consequential relief (c) valued at more than

Rs. 100/- both for purposes of court-fee and jurisdiction. The usual figure is Rs. 10/- with a court-fee of Seventy five paisa. In such suits

properties worth lakhs may be involved but yet the plaintiff can on his own choice get a decree about such huge property from the smallest court

whereas the case should have been heard by the highest court in the land. Again even in suit where the land is in the shape of a garden then the

market value has to be the criterion for fixing the valuation for court-fee and so on and so forth. Under the Suits Valuation Act also the

Government have the power to make rules and the rules framed pertain only to the determination of the value of land for purposes of jurisdiction.

These rules again place the jurisdictional value of land at fifty times of the land-revenue where it is a definite share of an estate and is separately

assessed to land-revenue. This provision again is fantastic because in cases of other than land, valuation for jurisdiction has to be fixed at the

market value but again it leaves open a number of cases where no rules have been framed by the Government for determining the valuation under

the Suits Valuation Act. According to the schedule attached to the Suits Valuation Act, for instance u/s 7, para. (9) no provision is made under the

rules for fixing the jurisdictional value of a suit and the value is left to judicial discretion. Under Schedule II. Articles 1 to 13, the rules say that no

jurisdictional value is necessary and similarly no provision is made for a number of cases which are governed by Schedule 2, Article 17 (b) and (ii),

(iii), (iv) and (v) of this very Article, and Schedule. So great confusion arises because of the failure of the Government to make rules under the Suits

Valuation Act for many important classes of cases. Rules have been made for suits for conjugal rights, establishing or annulling or dissolving a

marriage, Guardianship etc, of a minor, adoption, suits to establish or annual an adoption; suits to establish or negative a right etc. Under Rule 8 for

suits for rendering an alienation void, artificial classifications have been made and clever litigants make use of these classifications and avoid paying

proper court-fee; even with respect to the same subject-matter of dispute. when the suit is of one form, the plaintiff can fix his own valuation for

instance in suits for injunction, no matter what the valuation of the subject-matter of the suit is, but in case of land where it is a definite share and

separately assessed to land revenue a particular valuation has to be fixed and in the case of a garden or land not separately assessed, the valuation

has to be fixed at the market value. There is no rational basis for such classifications.

Now in the present suit, if it were a suit for possession of four shops, the value both for court-fee and jurisdiction would have been the market

value of the four shops and whereas when the suit is only for a declaration the court-fee payable is only ten Rupees and if we uphold the decision

of the trial court on this point, the jurisdictional value is only Rs. 130/- whereas the property involved is valued at Rs. 12,000/- according to the

sale deed in question. Various authorities have been cited by the learned counsel for the parties and these authorities have discussed other

authorities also. Therefore, it would be useless to discuss all the authorities on this point, both for and against either side of the proposition. In my

opinion the correct law has been laid down in AIR 1918 PC 188 wherein their Lordships have condemned the practice of valuing a prayer for a

declaratory decree at a certain amount as being the value on which the fee nearest to Rs. 10/- would be leviable, and it has been held that notional

value of the property or any part of it cannot displace its real value for the purposes of jurisdiction. Their Lordships said at page 190 Column 2

the fee paid by the plaintiff on his plaint was Rs. 10-6-0 and this cannot be reconciled with the theory that the prayer for a declaration was valued

at Rs. 130/-"" At page 191, Column 1 it is said ""It is to be traced to a practice not uncommon in Bombay of valuing a prayer for a declaratory

decree at Rupees 130/- as being the value on which the fee nearest to Rs. 10/- would be leviable. This practice has no warrant in law, but has

been followed from a misconceived notion of what caution requires. But never was caution more misplaced, and their Lordships feel strongly that

they ought not to allow the true facts to be distorted out of deference to an erroneous practice. And here it may be noted that the Rs. 130/- cannot

have been treated as the measure of the fee for on such a value Rs. 9-12-0 and not Rs. 10/- would have been paid."" Then further on they say:-

If regard be had to the real as distinct from the imputed value of the property the suit was properly instituted in the Court of the First Class

Subordinate Judge, and if any part of the fee payable and paid was a fixed fee under Schedule II of the Act, then the notional value of the property

or any part of it could not displace its real value for the purposes of jurisdiction.

In AIR 1927 Mad 563 the plaintiff brought a suit for declaration that her deceased husband was adopted to one R and that as such the plaintiff

was entitled to certain property it was held that:-

the valuation of the suit would be the market value of the properties affected.

On page 565 their Lordships while discussing a number of authorities lay down the law as follows:-

The general principles deducible for reduction for purposes of jurisdiction where no special method of valuation has been provided by statute then

it would seem to be (1) that where the subject-matter of a suit is wholly unrelated to anything which can be readily stated in definite money terms,

then the plaintiff having to put some money value for the purpose of jurisdiction, must put a more or less arbitrary value and there being no factors

in the case from which the Court can say his valuation is wrong or dishonest the Court will accept that valuation. Such is the case of a suit for

restitution of conjugal rights; See Aklemannessa Bibi v. Mahomed Hatem. (1904) ILR 31 Cal 849 and Zair Hussain Khan v. Khurshed Jan,

(1906) ILR 28 All 545 or a suit for declaration that the plaintiff is a member of a charity Committee; See Murza Hyder Alli Sahib Vs. Syed

Hussain Raza Sahib and Others, and (2) that where the subject-matter is so related to things which have a real money value that the relief asked

for will affect these, then the value of the suit for the purpose of jurisdiction is to be taken as the market value of the property affected, such, for

example as a suit for a declaration of fishery rights (see Babu Mohini Mohan Misser and Others Vs. Babu Gour Chandra Rai and Others and

Babu Pirthi Chand Lal Chowdhuri and Others, or a suit to set aside an award Venkatachalam Pillai v. Srinivasa Iyer, AIR 1924 Mad 84 or a suit

regarding liability to pay royalty: see K. Rayrappan Kutti Nambiar Vs. Kalliayt Thazhathveetil Chathathut Kutti Nambiyar, . But the market value

must be the market value of the whole of the property affected and not merely the plaitiff's share. This has been laid down clearly in Keshava v.

Lakshminarayana, ( 1883) ILR 6 Mad 192 and Ibrayan Kunhi v. Komamutti Koya, (1892) ILR 15 Mad 501.

The matter has recently been considered in a Patna case reported as AIR 1966 Pat 444 where many authorities have been discussed and need not

he referred to. In that case the plaintiff brought a declaratory suit to act as the sole sabayat of an idol and combined it with a relief for injunction

restraining the defendants from interfering with his possession of idol properties in the Munsiff's Court. His Lordship S. C. Misra, J, remarked that

the Munsiff had no jurisdiction to try the suit where the properties involved were worth lacs or in the neighbourhood thereof. In para. 9 his

Lordship said:-

.............If, therefore, in a suit which falls outside the purview of Section 8, that is to say, which falls beyond the ambit of Section 7, paragraphs v,

vi, ix and x clause (d) of the Court-fees Act, no doubt the valuation for the purpose of court-fee as also for entertainability of the suit would be the

same. Where, however, a suit would fall beyond the scope of this, the principle of Section 8 Suits Valuation Act providing for uniformity of both

these matters will not be applicable. If, therefore, the suit would fall under Schedule II. Article 17 (vi) of the Court-fees Act, it would not be same

as for the purpose of court-fee. Even on general principle, it would be strange indeed that where the value of the suit property is high, say more

than a million or so, a suit for declaration that A, who is the plaintiff has a right to act as the sole Sebayet combined with a relief for injunction,

restraining the defendant from interfering with the plaintiff's possession, would be triable by a court of Munsiff whose jurisdiction is Rs. 2,000/-"".

The learned counsel for the respondent however, referred me to 1999 KLR page 359. 7 J & K LR 165, 1969 Kash LJ 351 and 1964 Kash

LJ 397 = (AIR 1964 J & K 33).

In 1999 Kash LR 359 the suit was for the cancellation of an instrument and it was held that the relief for cancellation of the instrument even

though declaratory may be implied in the adjudication, is a matter of substantive relief separate and distinct from a relief where declaration is sought

as the principal remedy. Therefore, this authority has no application to the facts of this case.

In 7 J & K LR page 165 (2004) was a suit u/s 7, clause (iv) (c) of the Court-fees Act. It was a suit for declaration that a preliminary decree

was null and void and it was valued at Rupees 130 and court-fee paid accordingly. There the question of court-fee was in dispute and it was held

that the court-fee was adequate.

In 1969 Kash LJ 351 was a case decided by my learned brother Mian Jalal-ud-din, J. In that case his Lordship held that in a suit for

exercising the right of prior purchase, which related to land assessed to land revenue jurisdictional value would be fixed according to the rules

made in this behalf i. e, fifty times the land revenue. This case also has no application to the facts of the present case.

1964 Kash LJ 397 = (AlR 1964 J & K 33) also has no application to the facts of this case. It only lays down that a person who was not a

party to a sale deed could bring a suit for declaration seeking that the sale deed was null and void and ineffective so far as he was concerned.

Exactly the same question came up in Shivsangappa Irsangappa Kuppasad Vs. Muchkhandeppa Irsangappa Kuppasad, where a Division

Bench of that Court held that in a suit for declaration it is the real value of the property and not the notional value of the property that would

determine the valuation for jurisdiction apart from the valuation for purposes of court-fees. In my opinion this authority which has referred to the

Privy Council and Madras authorities above referred to lays down the proper law on the subject.

After discussing the law on the subject and expressing my view on the scheme of the Court-fees and Suits Valuation Act. I will now refer to an

important point raised by the learned counsel for the respondent in this case. He has raised a preliminary objection that this revision should be

rejected because, according to him, Section 11 of the Suits Valuation Act, Act No. XXXVIII of 1977 debars the defendants from raising such an

objection. Section 11 of the said Act reads as under:-

(1) Notwithstanding anything in Section 99 of the Code of Civil Procedure, an objection that by reason of the overvaluation or under valuation of a

suit or appeal a. Court of First instance or lower appellate court which had not jurisdiction with respect to the suit or appeal exercised jurisdiction

with respect thereto shall not be entertained by an appellate court unless:-

(a) the objection was taken in the court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower

appellate court in the memorandum of appeal to that court or ... ... ... ... ...

The words of this section make it obligatory upon a person to raise an objection with respect to valuation of a suit for purposes of jurisdiction at

the earliest possible moment, the time limit being fixed as the moment when issues were first framed and recorded. In this case there is no express

averment in the written statement that the jurisdictional value is not correctly fixed. Therefore on the language of Section 11 reproduced above, this

objection cannot be now entertained by this court which is admittedly an appellate court vis-a-vis the trial court. First at the time of settlement of

issues no such issue was sought to be raised by the defendants nor was any such plea taken by them in their written statement. The preliminary

issues were framed on 31-7-1968 and parties led evidence also with respect to those issues and it was only after about a year and half that this

plea of want of jurisdiction of the court was brought to the notice of the Court and an issue was framed on 24-1-1970 in this behalf. In my opinion

this plea is sufficient to get present revision application dismissed, which is hereby dismissed.

But as the actual value of the property involved in this case is put at Rs. 12,000/- therefore the suit is beyond the jurisdiction of the City Judge,

Jammu. I under my inherent powers transfer the case from the file of the City Judge to that of the Additional District Judge, Jammu. In this way the

time of the parties will be saved and the case is sent to the court having jurisdiction in the matter. The parties are directed to appear before the

Addl. District Judge, Jammu, on 30th November, 1971.