Hazi Mahammad Mustafa vs Mohendra Chandra Namasudra and others

Brij Narain, J.C.

A preliminary objection has been raised; by the learned Advocate for the respondents to the effect that the court-fees paid by the appellant on the memorandum of appeal is insufficient. It has been contended that court-fees should have been paid under S. 7 (v) (d), Court Pees Act and it should have been paid on the market value of the property and not on ten times the revenue as has been paid by the appellant.

For the purpose of ascertaining the court-fee payable in respect of a plaint the Court has to scan the nature of the relief claimed and for this purpose regard must be had to the allegations in the plaint and the cause of action alleged by the plaintiff should be looked into and not the contentions raised by the opposite parties in their written statements.

In the trial Court the appellant had paid court-fees on the market value of the property i.e., on a sum of Rs. 850/- but here they have paid court-fees on the memorandum of appeal on Rs. 53/12/- only and so it becomes necessary to examine the relief carefully as also the material, allegations made in the plaint which disclose the cause of action. It has been mentioned in the plaint.

that the present suit is a suit for declaration of taluka right in 2 kanis 4 gandas 2 karas of taluk land and for recovery of khas possession in the suit land and for mesne profits.

Valuation Rs. 800/- being the market value of the suit land and Rs. 50/- tentatively fixed as the mesne profits for the present, total Rs. 850/-.

The plaintiff''s version in the plaint regarding material particulars is as follows:

(1) Eamisali Choudhury was the owner in possession, by inheritance from his father, of 2 Kanis 4 gandas 2 karas described in schedule given below, and other lands relating to kharija taluk No. 34, standing in the name of Beran Malini. which has been carved out of 9 annas share of taluks nos. 2 and 3 recorded in the touji of Kailasahar Collectorate and situated at mouja Rajdharpur, within the P.S. and pargana Kailasahar and within the jurisdiction of this Court. He had been possessing these lands peacefully and keeping it in his khas possession for more than 25 years in assertion of his own right and adversely to others.

(2) Thereafter Eamisali Choudhury sold the land in suit described in the schedule given below to his daughter-in-law Srimati Saleme Khatoon Bibi in lieu of her dower money by executing a kabala in her favour on 10-11-57 T.E. Since her purchase Srimati Salema Khatoon began to possess the land in her own right on the strength of that purchase. Thereafter on 21-4-1951 Srimati Salema Khatoon Bibi sold those lands to the plaintiff who has been possessing the said land since his purchase....

(6) For the purpose of ascertaining the jurisdiction and court-fees payable in this suit, the valuation of this suit is fixed at Rs. 800/- being the present market value of the suit land; and Rs. 50/- is tentatively fixed for the present as the amount of mesne profits. So the suit is being filed by fixing the total valuation of the suit at Rs. 850/-.

Prayer;

Hence the plaintiff prays -

(a) That the plaintiff''s taluka right be declared in the suit land and khas possession of the suit land be restored to the plaintiff after evicting the defendants from the suit land and after removing all obstructions created by the defendants.

It becomes clear from the plaint that the suit was for recovery of possession, over specific plots of land whose boundaries had been given after ejectment of the defendants and for declaration of the plaintiff''s taluka rights over this land.

In view of these reliefs and the allegations mentioned above it becomes clear that the land in question did not form a definite share of any estate paying revenue to the Government and under S. 7 (v) (d) it has been laid down that where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as above mentioned, court-fee should be paid on the market value of the land.

The learned Advocate for the appellant has contended that the land in suit forms part of an estate paying revenue to the Government and as there was a private partition sometime back under which some portion of the land was given to Kazi Khorshid Ali Choudhury and the land in question was given to Eamisali Choudhury and so the appellant has paid court-fees on the entire revenue of the taluk no. 34 whose specified share in possession of Eamisali Choudhury is in question here.

Reliance has been placed on ''Kuljas Rai v. Pala Singh'', 1945 Lah 15 (AIR V 32) (A)" where a person sued for land jointly owned by two persons, it was held that even if specific plots are sold, in law it would be treated as a sale of a share of the joint property as no co-sharer had any right to sell specific plots out of the joint khata and, therefore, the value of an individual plot comprised in the joint khata is wholly immaterial in determining the point of court-fee.

In the present case the appellant does not sue for land jointly owned by two persons and it was not mentioned in the plaint that the specific plots in question formed a share of the joint property. In fact the contention which has been now raised by the learned Advocate for the appellant is based on the evidence of one of the witnesses for the defendants.

If the plaintiff-appellant wanted to rely on this fact, he should have clearly mentioned it in the plaint in para 6 but this was not done. The land in question cannot be arithmetically worked out as a proportion or a fraction of the property that has been assessed to land revenue and so S. 7 (v)(b) cannot be deemed to be applicable to this case.

Section 7 (v) (b) is as follows:

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 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.

Any such revenue is settled, but not permanently -

Five times the revenue so payable.

It is admitted in this case that the land in question is not separately entered in the revenue papers nor is any revenue recorded in the Collector''s register separately against it and so it becomes clear that the contention of the appellant has no force. The mere fact that this point was overlooked in the first Appellate Court will not be of any material consequence as the necessary court-fee would be charged from the appellant in this Court before this appeal is heard on the merits.

It has been clearly laid down in ''Randhir Singh v. Randhir Singh'', 1937 All 206 (AIR V 24) (B) where the land forming entire estate or definite share of estate paying revenue to Government is in question, S. 7 (v) (b) applied but where land is, not a definite share of estate paying revenue'' to Government and is not separately assessed, S. 7 (v) (d) applies.

In - ''Kandasami Goundan v. Subbai Goundan'', 1924 Mad 646 (AIR V 11) (C) it was held that a suit for recovery of a specific plot of land situated within a permanently settled estate ''but not constituting a definite share thereof or separately assessed to revenue'' falls within cl. (v) (d) and not under cl. (v) (a) or (b) of S. 7, Court Fees Act and therefore the court-fees should be paid in such cases on the market value of the property in suit.

In - ''Mt. Haliman v. Mt. Mediya'', reported in 1933 All 414 (AIR V 20) (D) it was held that the fractional shares of khewat khatas are parts of an estate (mahal), but are not definite. shares of the estate and are not recorded as separately assessed with revenue. Hence a suit for possession of fractional shares of khewat khatas is not governed by S. 7 (v) (b) but by S. 7 (v) (d) and the court-fee is payable on the market value of the fractional shares.

In - ''Chandra Narayan Singh v. Ashutosh Dev, 1914 Cal 442 (AIR v 1) (E) has been held that the plaintiff''s suit to recover the Ghatwahi estate of Rohini is governed by sub-cl. (d) of cl. (v). of S. 7, Court Fees Act as these estates are not revenue-paying estates because the amount payable to Government tenure holder is divided between the Government and the Zamindar of Birbhum and so they are parts of the estate of the Zamindar. The estate should, therefore, be valued according to its market value.

All these rulings clearly show that the appellant should have paid court-fees on the market value on the land in question in this Court as well as in the lower appellate Court and so there is deficiency in court-fees.

It is, therefore, ordered that the appellant should make good the deficiencies within 25 days of this date. The Registrar will submit a report regarding the ''exact amount which is due from the appellant on account of deficiencies of court-fees and then the deficiency will be made good.