Niram Dass vs Hirda Ram

R.S. Pathak, C.J.—This is a Defendant''s revision petition arising out of a suit for possession.

The Plaintiff filed a suit for possession of land alleging that he had gifted the land to the Defendant on condition that the Defendant would maintain him and attend to his needs and wants, that the Defendant did not do so, and therefore he had revoked the gift and in consequence prayed for possession of the land.

The Defendant alleged that he had built a house and planted an orchard on the gifted land, that the value of the house and orchard had not been taken into account and the suit had not been correctly valued for the purposes of court fee and jurisdiction.

The trial court rejected the objection of the Defendant and held that the suit was properly valued. The Defendant applies in revision.

It is urged on behalf of the Petitioner that in determining the value of the suit for the purposes of court fee and jurisdiction the trial court was bound to take into account the value of the building and the orchard planted on the land. The case of the Respondent is that the value of the land alone must be taken into consideration.

Admittedly the case is governed by Section 7(v) of the Himachal Pradesh Court Fees Act, 1968. The Section provides:

7 Computation of fees payable in certain suits-

The fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows.

....

....

(v) For possession of land, houses and gardens-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 estate paying annual revenue to the 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

....

(e) For houses and gardens-Where the subject matter is-house or garden-according to the market value of the house or garden.

The objection of the Petitioner refers to a building and an orchard planted on the land. At the outset, learned Counsel for the Petitioner concedes that the building is not situated on the land in question and therefore its value cannot be taken into consideration for the purpose of determining the value of the suit. But, he urges, the value of the orchard must be considered. On the basis of Bhajan Dass v. Ranbir Singh and Ors. Civil Revision 26 of 1971, learned Counsel says that an orchard must be considered as a garden for the purpose of the valuation of the suit.

The real question is whether the value of the land alone is to be considered for determining the value of the suit or regard must also be had to the value of the orchard. There is no dispute that the plaint in the suit refers to the land only and the relief also relates to the land only. The orchard was planted by the Petitioner soon after the land was gifted to him. Learned Counsel for the Petitioner relies on Shanti Prasad v. Mahabir Singh?, where a Full Bench of the Allahabad High Court has held that although the Plaintiff had not claimed any relief in respect of the buildings and the garden in a suit for possession of land, and he is found entitled to the relief he has claimed, the Defendant must either remove the buildings and do away with the garden in question or leave them as they are to be taken by the Plaintiff along with the land. In the circumstances, it was laid down that the buildings and garden must be held to be affected by the relief sought within the meaning of the term used in Section 3 of the Suits Valuation Act. It was pointed out that even if the suit was deemed to be a suit for possession of land alone, as it involved a building or garden standing on it the market value of the building and the garden standing on the land was bound to be added to the value of the land in order to determine the value of the land itself. Reliance was placed on Rule 3 of the U. P. Suits Valuation Act, 1942. Now, this provision expressly lays down that in suits for possession of land the value of the land for purposes of jurisdiction shall be determined by aggregating the value of the land and the market value of buildings or gardens situated thereon. The decision turned on the particular language of Rule 3(e). Such a provision is absent in the Act before me. My attention has been drawn to Divisional Forest Officer, Himachal Pradesh and Another Vs. Shri Daut and Others, but in that case the definition of land included orchards standing thereon.

In Kewal Kishore v. Hamad Ahmad Khan AIR 1959 Pun. 181 a Division Bench of the Punjab High Court held that in a suit for possession of land, on a part of which some buildings had been erected, the court fee payable in such a suit would not depend on the defence which might be raised but would be measured by the value of the land alone. In Durga Das v. Nihal Chand AIR 1928 Lah. 852, Jai Lal, J. held that in a suit for declaration the market value of the land alone should be taken into consideration for determining the jurisdiction of the court and the amount of the court fee to be paid. It further observed that the Plaintiffs claimed possession of the land and not of the building on the land.

It is said that different considerations arise when it is a case of land with trees thereon. It is urged that the case is entirely different from one of land on which a building has been constructed. It is pointed out, on the terms of Section 8 of the Transfer of Property Act that the definition of property means land and all things attached to the land. In my opinion, having regard to the scheme of Section 7 of the Court Fees Act such an inference is not easily possible. Section 7(v) speaks separately of land and of houses and gardens. When a garden or orchard is the object of the suit, the suit must be valued accordingly. Where, however, it is a suit for land only, it is the land alone which must be valued.

I am of opinion that in a case such as this the value of the land for the purposes of court fee and jurisdiction should be taken to be in stricto sensu and cannot include the value of an orchard planted thereon.

It is also contended by the Petitioner that there is a distinction between a suit filed against a trespasser for possession of land and a suit in which the Defendant was in possession originally under a legal right. For the purpose of the question before me, I am unable to appreciate why such a distinction should be drawn. If the orchard has been planted by the Defendant without the permission of the Plaintiff-there is no allegation here that permission had been given-the Plaintiff may confine himself to relief in respect of the land alone.

A point was raised as to the significance of the expression ''subject-matter'' in Section 7(v) of the Himachal Pradesh Court Fees Act. As in my opinion the land alone can be considered to be the subject matter of the suit, no question of any difficulty arises in valuing the land. The value of the entire land must be taken into consideration. The land is the subject matter of the suit: see Sm. Anguri Devi v. Gurnam Singh AIR 1951 Shim 238, Gajanam Nanaji v. Rajeshwar Krishanji AIR 1950 Nag. 237 and Ratilal Manilal Vs. Chandulal Chhotalal,

The revision petition fails and is dismissed, but there is no order as to costs.