Mumtaz Begum vs Aman Ullah Khan and Others

J.N. Bhat, J.—This revision petition originally came up before one of us hut was referred to a larger Bench In view of the importance of the

points involved In the petition.

The facts giving rise to this petition are that the Petitioner Mumtaz Begum brought a suit against the Respondents for a declaration that the

Plaintiff-Petitioner being the daughter of Section Abdul Qayoom Khan was entitled to l/3rd of the suit property which was land measuring 385

kanals and 19 ma(SIC)as under Khewats No. 1/1, 4/4, 9/7, and 5/5 in village Zakura Tehsil Ganderbal and Khewat No. 24/21 In village Gulab

Bagh Tehsil Ganderbal. The further reliefs prayed by the Plaintiff were:

1) possession of her share as well as partition of the land by metes and bounds;

2) settlement, of accounts between the Plaintiff and the Defendants about the income of the land referred to above to the extent of the share of the

Plaintiff; and

3) an Injunction against Defendants 1 to 3 from receiving and against' Defendant 4 from paying any Theka money to Defendant 1.

In para (6) of her plaint the Plaintiff made a mention of the fact that a portion of the land in suit was converted into an orchard by Abdul Qayum

Khan and the rest of it was under cultivation.

The Defendants took objections to the maintainability of the suit on various grounds. They stated that the suit for partition of the land was not

maintainable. In a civil Court, that the claim for accounts was not cognizable by a civil Court and that Insufficient Court-fee had been paid on the

plaint.

The suit was heard by the Sub-judge Srinagar (Judge Small Causes) and the learned Judge by his order dated 2-5-63 has held that the suit for

partition of the land was not maintainable in a civil Court; that the claim of the Plaintiff for rendition of accounts also was not cognizable by a civil

Court u/s 85 first group sub-Clause (1) of the Tenancy Act and that the Plaintiff should pay Court-fee on the orchard on its market value holding it

to be a garden and therefore liable to Court-fee u/s 7 Clause (v)(e) of the Court-fees Act. It accordingly directed the Plaintiff to amend the plaint

incorporating only such reliefs which were triable by the Court and directed her to value the relief for possession of that part of the suit property

which is an orchard according to its market value. Against this order the Plaintiff has come up in revision.

Three points have been decided by the trial Court by its order under revision, as already stated. So far as the Plaintiff's suit for a share of the

profits in the holding is concerned, it clearly comes u/s 85 Group I Sub-clause (i) of the Tenancy Act. If the Plaintiff is held entitled to the property

sued for she becomes a cosharer along with the other Defendants 1 to 3 of this property. Therefore her suit for share of the profits which accrued

from this holding or land shall be clearly cognizable by a revenue Court. The learned Counsel for the Petitioner referred to an authority reported as

Mt. Nehal Devi v. Kishore Chand 8 Ind Cas 999 (Lah), but on a cursory perusal of this authority it is abundantly clear that it has no application to

the facts of this case. In that case it was held that after the profits of agricultural land belonging to a partnership firm are realized jointly and duly

entered in the books of the firm as part and parcel of its assets, they become moneys had and received by the firm and a suit by the representative

of a partner for his share of such profits, is not excluded from the cognizance of the civil Courts. The question of co(sic)arers there did not at all

arise. To this extent the order of the trial Court is correct and is upheld.

On the second point, whether in the circumstances of this case a claim for partition of the suit property is cognizable by the civil Court or not, the

finding of the trial Court as given by it cannot be upheld. Mr. Bhan's contention has been that a claim for partition of agricultural land is expressly

barred from the cognizance of a civil Court under the provisions of Section 139(2)(xvii) of the Land Revenue Act. This part of Section 139(2)

reads as under:

Any claim for partition of an estate, holding or tenancy, or any question connected with, or arising out of, proceedings"" for partition unless such

question is to be determined by a civil Court as a question of title arising out of the said proceedings.

Mr. Bhan further argued that Chapter X of the Land Revenue Act deals with the subject of partition of land as defined in the Land Revenue Act

and admittedly, according to him, the subject-matter of"" the suit was land as defined in the Land Revenue Act. According to Mr. Bhan, this

Chapter contains a complete procedure about partition of land and any joint holder of land can move a Revenue Officer by means of an

application for effecting a partition of the land. If during these partition proceedings any objection is made pertaining to proprietary title which has

not been determined by a Court of competent jurisdiction, the Revenue Officer shall not proceed with the application unless the dispute has been

determined by a competent Court; or require any party to the case to institute within three months a suit in the civil Court for determination of such

cases or proceed to inquire into the merits of the objection himself. In the latter case he will follow the procedure laid down in the CPC for the trial

of original suits (Section 111-A of the Land Revenue Act). According to Mr. Bhan, no civil Court has jurisdiction to try any matter which Involves

partition of land. The language of Section 111-A of the Land Revenue Act itself would suggest that where any question of title is involved in any

matter relating to partition of land, it has to be determined by a Court of competent jurisdiction. Even if the partitioning Revenue Officer inquires

into the matter himself, the matter has to be tried as a regular civil suit. It may be remarked that Section 139(2)(xvii) of the Land Revenue Act

makes mention of a claim simpliciter and does not apparently cover cases where more contested questions of title are involved.

In the present case the suit of the Plaintiff is for a declaration that she is entitled to l/3rd of the land in dispute. As has been admitted even by Mr.

Bhan such a relief is exclusively within the jurisdiction of the civil Court and the revenue Court has no power to entertain such a suit much less to

determine it. The only question is that after determination by the civil Court about the title of the land In a particular party, whether the civil Court

can take any further action to get the land partitioned. In this behalf the provisions of Order 20 Rule 18(1) CPC have to be taken into

consideration. This rule reads as under:

Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then-

(1)if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of

the several parties interested in the property, but shall direct such partition or separation to be made by the Collector or any gazatted subordinate

of the collector deputed by him in this behalf, in accordance with such declaration and with the provision of Section 54.

Mr. Bhan's contention is that Order 20 Rule 18(1) of the CPC does not apply to this case, and he tried to make a faint distinction by suggesting

that there can be lands other than those which are assessed to land revenue. But he could not discern the fallacy in his argument because In the

Instant case the land, that is the subject-matter of the suit, is admittedly land assessed to land revenue. Therefore the distinction he tried to make

out does not exist, but his case is clearly covered by Rule 18(2) of Order 20 of the Code of Civil Procedure.

Now there does appear at the very first sight to be some conflict between the provisions of this rule and Section 139(2)(xvii) of the Land

Revenue Act. As shall be presently made clear, there is no conflict between these two provisions of the two- enactments, but before that point is

discussed, we have to keep in view the general rule of interpretation of statutes. It is very well settled that when the provisions of two enactments

apparently conflict with each other, they should be so interpreted and read together as to obviate the apparent inconsistency. The Court should

struggle against repugnancy arid should construe an enactment as far as possible, in accordance with the terms of the other statute which it does

not expressly modify or repeal. Some words may have to be employed at one place or the other in order to remove the inconsistency. In this

behalf Maxwell in his Interpretation of Statutes (11th eon.) at page 162 writes:

It is a reasonable presumption that the legislature did not intend to keep really contradictory enactment on the Statute Book, or, on the of her hand,

to effect, so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be

adopted unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real

intention.

There is no dearth of authority for this proposition of law. Brett M. R. in Queen v. Overseers of Tanbridge (1884) 13 QBD 339, at p. 342

observed:

In the first place, it was said that if construed according to their ordinary grammatical construction, they (the words of a section) would practically

contradict other sections in a series of Acts of Parliament which apply 1o burial boards and districts. If it had been found that reading them in their

ordinary sense they would contradict some other enactments, but that reading them In a sense in which, though not their ordinary sense, they were

reasonably capable of being read, they would not contradict such other enactments, then 1 agree that they should be read so that all the

enactments should be read together without contradicting each other.

In Khan Girl v. Lakha Singh AIR 1928 Lah 609 (FB) it has been held that the Court should struggle against repugnancy and should construe

an enactment as far as possible in accordance with the terms of the other statute which it does not expressly modify or repeal.

In this authority it has further been held that

It is a cardinal rule governing the interpretation of statutes that when the language of the legislature admits of two constructions, the Court should

not adopt a constructions which would lead to an absurdity or obvious injustice.

In Anr. Full Bench authority Mada Nagaratnam Vs. Puvvada Seshayya and Another, it has been held:

In order to avoid a conflict between two sections, they must be read together and the language of one interpreted and where necessary modified

by that of the other. In this way it may In most cases be found possible to arrive at a reasonable and practical construction of the language of the

sections, so as to reconcile the respective powers they contain and give effect to all of them.

Similarly in AIR 1950 81 (Privy Council) it has been laid down:

The omission to make such cross-references as may be required to reconcile two texturally inconsistent provisions is a common defect of

draftsmanship. In such cases, the cross-references have to be implied in order to remove the inconsistency.

Haji Shakoor v. volkart Bros. AIR 1931 Sind 124 may also be referred to in this connection. In this case it has been held:

It is (sic)curnbent upon the Court to see that the provisions of one Act which are apparently inconsistent with the provisions of Anr. Act passed by

the same legislature should, as far as possible be reconciled by reading one as a qualification of the other and that if that be not possible, the

provisions of the latter Act should prevail as it speaks the last intentions of the makers.

Keeping this salutary principle pertaining to the interpretation of statutes in view, let us examine the entire provisions referred to above.

It is correct - and it is not denied - that a claim for partition is exclusively triable by a revenue Court. This is not in conflict with but is borne out

from the language of 0. 20 Rule 18(1). This rule allows the Court to determine the rights of parties with respect to land in the civil Court, and to

pass a preliminary decree decreeing the rights of several parties, interested in the property. So far and no farther. When actual partition is to be

effected in pursuance of the declaration of the rights of the parties in land, the civil Court has to refer the matter to the Collector or any gazetted

subordinate of his to effect the actual partition. Therefore, apart from there being any inconsistency in the two provisions, they are complimentary

and supplementary to each other. The Civil Court's function is to adjudicate the shares and having done so, the revenue Court's function is to effect

actual partition. In this view of the matter, the trial Court in this case has erred in holding that the suit as framed by the Plaintiff including a relief for

partition, was not cognizable by it. If the Plaintiff succeeds in the suit, the civil Court will adjudicate upon the rights of the Plaintiff, determine her

share, pass a decree for possession of her share and after doing that, direct the Collector or any gazetted subordinate of his to effect the actual

partition of the land in terms of 0rder 20 Rule 18(1) of the CPC and particularly in consonance with the provisions of Section 139(2)(xvii) of the

Land Revenue Act. The Plaintiff, therefore, need not delete the relief of partition from her suit.

The other point decided by the trial Court Is with regard to the orchard and it has held that the Plaintiff must value her plaint, so far as the

orchard is concerned, at its market value. It may be noted here that the trial Court as well as the Plaintiff has used the word 'orchard', but while

passing the order the trial Court has confused the word orchard with the word garden. The controversy on the interpretation of the word garden

has arisen from time to time due to the fact that land, orchard or garden have not been defined in the Court-fees Act. The Land Revenue Act,

however, defines the term ""land."" . In Section 3(2) of the Act ""land"" means land s which is occupied or has been let for agricultural purposes or for

purposes subservient to agriculture...and includes trees standing on such land....

Now from the definition of land in the Land Revenue Act it is clear that even trees standing on such land shall be deemed to be ""land"" for

purposes of the land Revenue Act; and as there is no special definition of land given In the Court-fees Act, this definition should be taken as

pertinent.

The word 'orchard' according to Webster (See, Webster's International Dictionary) means ""a plantation or enclosure containing fruit trees, nut-

bearing trees, or sugar maples; also the trees of such a plantation; a grove of wild fruit bearing trees."" According to the same dictionary the, word

'garden' means a plot of cultivable ground adjacent to a dwelling and usually devoted in whole or in part to the growing of herbs, flowers, fruit or

Vegetable for household use.'

The objection of the Defendant and the fallacy committed by the lower Court seems to be based on a popular; translation of the word ""garden

rather vice-versa of the term 'Bagh' in Urdu as garden in English. But when we scan the dictionary meaning of the word 'garden', its juxtaposition in

the Court-fees Act and its interpretation from time to time both in England and in India, we come to the irresistible conclusion that the plot of land

in this case which grows fruit bearing trees can in no sense of the term be considered a garden for purposes of the Court-fees Act.

Stroud in his Judicial Dictionary (Vol. 2; 3rd edn.) has given a number of English authorities wherein the word garden has been the subject-

matter of Interpretation. Referring to a case Cooper v. Pearse (1896) 1 QB 562 Collins J. Is said to have defined garden m the following words.

A garden might be defined as a plot of ground on which fruit, vegetables, and flowers are grown for food or pleasure.

Referring to Anr. case Ex. p. Calgaro; Re Aloisl (1949) 66 NSW WN 223 it has been held that garden does not apply to land cultivated as

part of a business of growing produce for sale.

Similarly in Anr. case Macdonald v. Welsh 33 Sc. LR 719, a garden is not, necessarily, composed entirely of flower beds; it is not complete

without a certain extent of ground is kept in grass. Indeed, some people, instead of planting flowers, prefer to keep the ground adjacent to the

house entirely in grass. But it does not, for that reason, cease to be garden ground in a reasonable sense of the word.

In Murray's dictionary garden' has been defined as an enclosed piece of ground devoted to the cultivation of flowers, fruit, or vegetables.

Amongst the Indian authorities on the subject, the following authorities maybe noticed and shall be discussed: Audathodan Moidin v.

Pullambath Mamally IIR 12 Mad 301 (FB); Mt. Bhag Bhari v. Jawahar Singh 25 Ind Cas 545 : AIR 1914 Lah 388; Abdul Rahim Sahib v.

Kullappa Gownden 30 IC 845 : AIR 1916 Mad 740(2); Behari Lal v. Nand Lal 68 Ind Cas 345 (Lah); Kullappa Goundan v. Abdul Rahim Sahib

AIR 1918 Mad 805, Mt. Hakim Bibi v. Mir Ahmad AIR 1930 Sind 15; Vayyapuri Vaihlar v. Somianarayana Iyengar AIR 1948 Mad 344 and

Kharka v. Yelappa AIR 1953 AP 28.

ILR 12 Mad 301 is the authority which has been repeatedly referred to in the later authorities on the subject. This was a Full Bench case

before the Madras High Court consisting of Sir Arthur Collins C.J. and Muthusami Ayyar, Parker and Wilkinson JJ. Their Lordships have said that

the word 'garden' Is nowhere defined in Act VII of 1870, but from its occurring In connection with the word houses, we are of the opinion that the

term refers primarily to a garden in the English sense-ornamental or pleasure or vegetable....'

In AIR 1916 Mad 740(2) it has been held that a few isolated trees on a piece of land will not make it a garden.

In 25 Ind Cas 545 : AIR 1914 Lah 388 AIR 1930 Sind 15 and 68 Ind Cas',345 (Lah) the word 'garden- was not defined, but the point in

these authorities turned1 round the question what would be the Court-fees payable when a certain piece of property was admitted to be garden.

Therefore according to the provisions of Section 7(v)(e) of the Court-fees Act there could be no controversy about the Court-fees payable which

was in such cases paid on the market value of the garden.

In 30 Ind Cas 8415 AIR 1916 Mad 740(2) the point for determination was whether assessment to land revenue made any difference in

describing a certain plot of land as garden or not. It was held that' whether the plot was assessed to land revenue or not would not make any

difference so far as the term garden was concerned. In that authority it was further held:

A few Isolated trees on a piece of land will not make it a garden, but where a number of trees are planted on a particular piece of land which is

well-defined and can be marked off from the rest of the land, that particular plot may be treated as a garden if the land Is used for the cultivation of

flowers, fruits or vegetables.

The decision In AIR 1918 Mad 805 was given by a Division Bench of the Madras High Court consisting of Ayling and Seshagiri Aiyar IJ.

Their Lordships discussing the history of the law of Court-fees and basing their decision on ILR 12 Mad 301 (FB) laid down that the term Harden

in Section 7(v)(e) of the Court-fees Act Is a technical term and is used primarily in the sense of ornamental or pleasurable or vegetable garden. The

conversion of an assessed arable field into a coconut tope does not (sic) the application of CI. 5(b) of Section 7 of the Act.

In AIR 1948 Mad 344 it was held that where (sic) nam land was planted with coconut trees, it could not be held to be a garden within the

meaning of Section 7(v)(e) of the Court-fees Act.

Similarly in AIR 1953 AP 28 it was laid down:

...There is no reason why a Panmalla (land growing betel leaves) should be considered to be a garden and not any other field - Paddy field or a

jawar field. Simply because the cultivation of betel leaves is a luxury and not a food crop or other necessity, the cultivation of that luxury does not

render that field into garden. A garden would need some kind of construction on or some formation of trees where fruit, flowers w other

vegetables are grown for purposes of profit, gate or decoration, in any case while it may &e very aim-cult to define the word 'garden' certainly it

cannot mean the same tiling as a paddy field or a betal field or a betel field and Panmalla is nothing more than a field.

The various definitions by which an attempt has been made to define the word 'garden' in the Court-fees Act lead only to one conclusion that

the word garden has to be interpreted in an English sense of the terms and as has been remarked by Seshagiri Aiyar J. the Court-fees Act was

drafted by an English lawyer and as such the connolalion of garden that he had in mind was an appendage to a house or a place which was kept

for purposes of pleasure. This argument is further supported by the juxtaposition of the word garden along with other words in the Court-fees Act.

The earlier portions of Section 7(v) deal with land and Section 7(v)(c) deals with a house or a garden. That part of the -suction reads:

Where the subject-matter is a house or garden. - according to the market-value of the house or garden.

So it can very easily be said that the legislature never Intended to term that piece of land as a garden upon which trees, whether fruit trees or other

kinds of trees stood, or which in popular language is called an orchard.

In this case the plaint as well as the order of the trial Court uses the word orchard. A garden to our mind seems to connote a small piece of

land which is usually adjacent to a dwelling house and is used for the purpose of growing flowers, vegetables or fruit for human consumption or is

kept in order to beautify and add to the grandeur or value of the dwelling house or is otherwise used for pleasure. Agricultural land in which fruit

bearing trees have been planted, as in this case, cannot be construed to be a garden in any sense of the term as envisaged in the Court-fees Act.

Therefore, in our opinion, the finding of the trial Court holding flit orchard in dispute as a garden is erroneous and cannot be maintained, and the

proper Court-fees payable on such s piece of land would be u/s 7(v)(b) of the Act.

The result is

(1) that the suit for a share of the profits will not lie to the civil Court. In that behalf the Plaintiff will put in an application before -the trial Court

requesting for the deletion of this relief.

(2) that the Plaintiff's title to and her share in the property will be determined by the civil Court. If she is found entitled to any share in the land in

dispute. She will be granted a decree for possession and the partition of her share of land will be got effected through , the Collector or any

gazetted subordinate of his.

(3) The Court-fees payable by the Plaintiff for her share of the orchard in dispute will be paid under the terms of Section 7(v)(b) and not Section

7(v)(e) of the Court-fees Act.

This revision application is accordingly disposed of, but In view of the partial success and failure of the parties In this revision, there will be no

order as to costs.

S. MURTAZA FAZL ALI, J.

I agree.