Hem Chandra Sarkar and others vs Smt. Maharani Kanchan Prava Mahadebya

Brij Narain, J.C.

This is an application in revision under Art. 34 of the Tripura Courts Order against the order of the learned Subordinate Judge, Agartala, dated 27-11-1955 in civil suit No. 129 of 1954 by which the petitioners'' objections that the courts fee paid by the plaintiff was insufficient and the suit was cognizable in the Munsiff''s Court were overruled.

The dispute in this case relates to 4 kanisland within the dag No. 5457 which is not separately assessed to revenue in the official records.

The suit by the plaintiff was for declaration on establishment of her taluki rights in the lands specified in the schedule given in the plaint and for khas possession on the said lands by demolishing and removing the huts of the defendants existing therein and by ejecting the defendants therefrom.

The contention of the petitioners was that as the prayer was for declaration with consequential relief, an ad valorem court fee should have been paid and if the court fee paid on ten times the revenue was sufficient, the suit would be maintainable only in the Munsiff''s Court.

The main question which is to be determined is as to whether an ad valorem court fee should have been paid in this case on the value of the property or the court fee paid on ten times the land revenue is sufficient, as it has not been disputed that under S. 8 of the Suits Valuation Act the value as determinable for the purposes of jurisdiction is to be the same.

The learned Advocate for the opposite party has contended that even though the plaintiff claimed possession over her specific plots of land on which revenue has not been assessed separately, this land must be deemed to be a fractional share of the entire estate on which revenue has been assessed and he has relied on ''Kuljas Rai v. Pala Singh'', 1945 Lah 15 (AIR V 32) (A), but in this case the property in question was separately noted in the jamabandi and was assessed to land revenue.

Reliance has also been placed on ''Hubibul Hossein v. Mahomed Reza'', 8 Cal 192 (B), decided on 8-9-1881 which lays down that the assessment of the court-fee in a suit by a subordinate tenure holder to recover possession of a definite portion of an entire estate paying a permanently settled annual revenue to Government, should be made under the first subdivision (a). Cl. 5 of S. 7 of the Court-fees Act but the facts of the present case are totally different.

In ''Subramania Ayyar v. Rama Ayyar''. 1927 Mad 1002 (AIR V14) (CI, no doubt, it was held that fractional share indicated in the notification, covers a case where the plaintiff claims a certain fraction of a survey number and in this case the rulings reported in Reference under Court-fees Act, 1870 '' 16 All 493 (D)'' and ''Chandhan v. Bishan Singh'', 33 All 630 (E), were dissented from. For reasons to be recorded later on, I am of opinion, with great respect that the view taken in this case should not be followed. Section 7 (v), Court fees Act, which is in point 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 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 :

In order to apply this provision it is necessary that the land which is the subject-matter of the suit should form an entire estate or a definite share of any estate paying annual revenue to Government. This provision cannot apply to specific plots of land on which no revenue is separately assessed. If the land in question had been shown as a definite share of an estate and there had been separate engagement to Government regarding revenue the position would have been different.

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

It was further held that khewat khata though recorded as separately assessed is not "estate" without separate engagement to Government. So far as the specific plots in question are concerned, they are not assessed to revenue separately and I think to calculate the revenue according to the area when compared to the area of the mahal would not give any fair idea of the revenue which would be realisable from the land in question as the lands are arable lands while in the entire estate waste lands and all other types of lands were also included.

In ''Mt. Fazilat Khatun v. Haji Rahimbux Gulmahomed'', 1941 Sind 154 " "(AIR V 28) (G), it was laid down that in suits coming within the purview of S. 7(iv)(c), the plaintiff has not an absolute right to value the relief at any sum he pleases but the court can inquire into the matter and raise the valuation if it finds that the relief claimed is undervalued. ''At page 158'' it was observed by Lobo J.:

The share which the plaintiff-appellant claimed was not land which formed an entire estate or a definite share of an estate paying annual revenue to Government. The case clearly fell under clause (v) (d) of S. 7 as the share of agricultural land claimed formed part of an estate paying revenue to Government but was not a definite share of such an estate and was not separately assessed.

In ''Tula Ram v. Dwarka Das'', 1928 All 248 (AIR V 15) (H), it has been held that when a party asks for a declaration as his first relief and possession as a second relief, it must be taken that in the opinion of the party, or at least of his legal adviser, the declaration is a necessary relief and so the suit would clearly fall within the purview of S. 7(iv)(c), Court-fees Act, and ad valorem Court fee is payable as required by S. 8, Suits Valuation Act.

In ''Mt. Ganga Dei v. Sukhdeo Prasad'', 1924 All 612 (AIR V 11) (I), it was held that where the suit as framed is clearly one for a declaration with consequential relief though the suit might have been framed purely as a suit for possession the plaintiff has to pay court fees on the relief which he seeks to obtain by the suit and ad valorem court fee had to be paid; vide also ''Armada Prasad Singha v. Nanda Lal '' 1956 Tri 17 (AIR V 43) (J).

In view of these decisions, it is clear that in suits regarding isolated plots in which declaration as well as consequential relief are prayed for an ad valorem court fee on the value of the property has to be paid and the value of the suit '' for the purpose of jurisdiction would be the same as the valuation for the purpose of court fees.

I, therefore, hold that this suit was maintainable in the Court of the learned Subordinate Judge but ad valorem court fee on the value of the disputed properties should be paid by the plaintiff. The revision is allowed to the extent indicated above. The parties will bear their own costs.