Family Manager Ponnuswami Gounder 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 1-11-1943 issued by the High Court under S. 9, Suits Valuation Act, as regards suits for injunction in relation to

immoveable property.

The notification is in 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 Jess than half

the value of the immoveable property calculated in the manner provided for by paragraph (v) of Sec. 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 are that certain immoveable properties were purchased by the father of the plaintiff from the defendants on 13-8-1947 under a registered

sale deed and that ever since the date of the purchase the plaintiffs family had been in enjoyment thereof.

The plaint goes on to say that the plaintiff''s father having died a few weeks before the date of the suit, the defendants, taking advantage of the

plaintiff''s 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 plaintiffs 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 readied his decision against the plaintiff was that as the suit was admittedly one for a

permanent injunction it fell within S. 7 (iv) (d), 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

satisfied. 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 benami 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, , and - Sri Sri Satyabhigna Theerthaswamy Varu of Uttaradi Mutt by Alur Markapuram Srinivasacharyulu Vs. Mundru Narasayya

and Others,

Having considered the matter carefully I 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 payable 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 we have the notification of 1-10-1943 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) (e) of the Court-fees Act in these terms:

In suits coming under sub-clause (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 properly. 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 sought to be

put upon them. In Re: Ghosh Beevi, was 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 notification were in force, the suit would fall within its 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 Idorwill J., in CRP No.

118 of 1946 (Mad) (C). The learned Judge recognised 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 - Pappukkannu Anni Vs. S. Thoppayya Mudaliar and Another, . 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.