Family Manager Pionnuswam Goundar vs Sinnana Goundar and others

Rajagopala Ayyangar, J.—This revision petition by the plaintiff in O. S. No. 509 of 1952 on the file of the District Munsif''s Court, Udumalpet, is against the order of the District Munsif as regards the court fee payable on the plaint and raises for consideration the proper construction of the notification of 1st November 1943 issued by the High Court under S. 9 of the Suits Valuation Act as regards suits for injunction in relation to immoveable property. The notification is these terms :

In suits for injunction where the relief is sought with reference to any immoveable property on the ground that the defendant denies title of the plaintiff to the property and disturbs or threatens plaintiff''s possession thereto, the value of the subject matter of the suit shall not be less than half the value of the immoveable property calculated in the manner provided for by paragraph (v) of 5, 7 of the Court Fees Act of 1870.

The question for consideration in the revision is whether the plaintiff has to value the suit in accordance with this notification. The allegations in the plaint ere that certain immoveable properties were purchased by the father of the plaintiff from the defendants on 13 th August. 1947 under a registered sale deed and that ever since the date of the purchase the plaintiff''s family had been in enjoyment thereof. The plaint goes on to say that the plaintiff''s father having died a few weeks before the dale of the suit, the defendants, taking advantage of the plaintiffs youth were threatening to trespass upon the suit properties and disturb his enjoyment. He therefore prayed that a permanent injunction might issue preventing the defendants from interfering with his peaceful enjoyment of the suit properties. He valued the relief under S. 7(iv) (d) of the Court Fees Act at Rs. 10 and paid a court fee of Rs. 1-2 -0 on the basis of this valuation.

In their written statement the defendants denied the plaintiff''s title to the properties and also raised for the consideration of the Court whether the suit was properly valued. On this latter contention an additional issue No. 6 was framed and the learned District Munsif held that the suit had to be valued in accordance with the notification, and has directed the appointment of a Commissioner to ascertain the market value of the property. It is against this finding of the learned District Munsif that this revision has been filed by the plaintiff.

The reasoning by which the learned District Munsif reached his decision against the plaintiff was that as the suit was admittedly one for a permanent injunction it fell within S. 7 (iv) (d) of the Court Fees Act under which court-fee is payable according to the amount at which the relief sought is valued in the plaint. The relief sought was with reference to immoveable property and therefore this condition of the notification was also savvied. The only question that remained related to the other condition required before the notification could apply namely.

that the relief of injunction should be sought on the ground that the defendant denied the title of the plaintiff to the property and disturbed or threatened to disturb plaintiff''s possession.

The plaintiff had averred that the defendants were threatening to disturb his possession and enjoyment. The question therefore narrowed down to this, viz., whether that portion of the notification which refers to the relief being sought on the ground that the defendant denied the title of the plaintiff to the property was satisfied or not. In dealing with this the learned District Munsif referred to the written statement filed by the defendants in which they attacked the reality of the sale to the plaintiff''s father alleging that this was beatnik for themselves. From this he drew the inference that the substance of the suit was one in which the plaintiff was seeking the relief of injunction on the ground that the defendants attacked his title. He was conscious that there was no allegation in the plaint regarding the denial of his title and so stated:

It is true that the plaint does not contain any allegation that the defendants are denying the title of the plaintiff. But according to the notification for valuing the subject matter of the suit, an allegation of a mere threat to disturb plaintiff''s possession is sufficient to call upon the plaintiff to value the subject-matter at half the market value of the property involved. The effect of the notification is that the plaintiff cannot value the suit at less than half the value calculated in the manner mentioned therein in a suit for an injunction upon an allegation that the defendant is threatening to disturb the plaintiff''s possession of the property.

In support of this construction which he placed on the notification the learned District Munsif referred to two decisions of this Court in In re Ghosh Beevi (1944)1 M.L.J.340 = 57L.W. 249 and Sri Sri Satyabhigna Theerthaswamy Varu of Uttaradi Mutt by Alur Markapuram Srinivasacharyulu Vs. Mundru Narasayya and Others, .

Having considered the matter carefully 1 find I cannot agree with the view expressed by the learned District Munsif. The notification in question is a fiscal enactment and unless its words are completely satisfied the litigant cannot be charged with the fee pay-ably under it. Under S. 7 (iv) (d) of the Court Fees Act and before the notification the plaintiff was free to put his own valuation which was not open to revision by the Courts. In variation of this right to have the notification of 1st October 1943 the terms of which I have extracted above. There are two conditions specified in it before it could be attracted; the first being that it must be a suit for an injunction in relation to immoveable property necessitated by the defendants disturbing or threatening to disturb the plaintiff''s possession of the property. There is also a second condition laid down namely that the plaint must allege that the defendant was thus threatening to disturb his possession on the ground that the plaintiff had no title to the property. The construction put upon the notification by the learned District Munsif, if accepted, would virtually lead to the elimination of the second condition which I have set out above and I do not consider that this result could be achieved on any reasonable principle of construction. One thing is clear that the allegations in the written statement or the issues raised thereby cannot possibly bear upon the question of the court-fee payable by the plaintiff. This must be determined wholly by ''the allegations contained in the plaint and the relief sought on the basis of such allegations. If the written statement of the defendants were eliminated what we have in the present case is merely a suit for an injunction in relation to immoveable property restraining the defendants from disturbing or unlawfully interfering with the plaintiff''s possession of the property belonging to the plaintiff on the allegation that this was done taking advantage of the plaintiff''s youth and inexperience On these allegations in the plaint, the present suit would not fall within the scope of the notification but under S. 7 (iv) (d) under which the plaintiff can value the suit without reference to the market value. In this connection it would be useful to refer to the language of the proviso which was introduced by the Madras Amendment to S. 7 (iv) of the Court fees Act, in these terms :

In suits coming under Sub-Cl. (C) in cases where the relief sought is with reference to any immoveable property such valuation shall not be less than half the value of the immoveable property calculated in the manner provided for by paragraph V of the section.

It will be noticed that the proviso is satisfied by the relief of declaration being with reference to any immoveable property. The ground upon which the relief is sought is not made an additional condition or part of the qualification for attracting the operation of the proviso.

I will now make a brief reference to the decisions relied on by the lower Court which in my opinion do not support the interpretation thought to be put upon them. In re Ghosh Beevi (1944) 1 M.L.J. 340=57 L.W. 249.as concerned merely with the question whether the notification was prospective or could apply to appeals filed after that date notwithstanding that it was not in force when the suit was originally instituted. It was assumed that if the terms but there is no discussion as regards the conditions which have to be satisfied before the notification could be attracted to any particular plaint Sri Sri Satyabhigna Theerthaswamy Varu of Uttaradi Mutt by Alur Markapuram Srinivasacharyulu Vs. Mundru Narasayya and Others, .is a decision by Govindarajachari, J, and the only question considered was whether the trees standing on the land were or were not immoveable property within the meaning of the notification. Here also it was assumed that if the answer to this question was in the affirmative the suit was covered by the notification. Besides these two decisions referred to in the Order of the learned District Munsif my attention has been drawn to an unreported decision by Horwill, J., in C. R. P. No. 118 of 1946. The learned Judge recognized the necessity for the two conditions, namely, the injunction relating to immoveable property and the plaint raising a question of title, to be satisfied before the notification could be brought into play. The learned Judge however on the facts and from the plaint as a whole drew the inference that the plaint had made an allegation of that sort. This decision therefore does not really decide the point now arising as the learned Judge held that both the conditions were satisfied. I might also refer to a decision of Venkatarama Aiyar. J., in Pappukannu Anni v. Thoppayya Mudatiar (1962) 2 M.L.J. 108= 65 L.W.185 (2) where the learned Judge had to deal with the question whether a suit for an injunction in relation to an assessment could fall within the scope of the notification. The learned Judge held that such suits fell within S. 7 (iv) (d) and therefore were not governed by it. But dealing with this notification he said

I am unable to see how this notification applies to the present case. That in terms applies, only when the relief is asked for on the ground that the title of the plaintiff is disputed and possession is in consequence sought to be disturbed.

In my judgment there are two conditions to be satisfied before a plaint could fall within the notification. The first is that it must be a suit for an injunction in relation to an immoveable property restraining the defendant from disturbing the plaintiff''s possession or enjoyment. Secondly it must be possible to gather from the plaint an allegation that the ground on which the defendant is seeking to disturb the plaintiff''s possession is on foot of a denial of the plaintiff''s title. Unless both these conditions are satisfied, the notification will not be attracted and the plaintiff can value the suit under S. 7 (iv) (d) of the Court Fees Act. On this basis the court fee originally paid by the plaintiff is sufficient. The result is that this revision is allowed and the finding of the learned District Munsif on the additional issue No. 6 is set aside. There will be no order as to costs in this revision.