Pappukkannu Anni vs S. Thoppayya Mudaliar and Another

Venkatarama Ayyar, J.—This is a petition to revise the order of the learned District Munsiff of Tiruturaipundi calling upon the plaintiff in

O.S. No. 407 of 1949 to pay additional Court-fee. The allegations in the plaint are that the plaintiff and defendants are owners of neighbouring

lands, that the defendants whose lands are on a higher level are attempting to pass oh the. surplus water of their lands to the lands belonging to the

plaintiff by cutting the bund and that they have no right to do so. The prayers in the plaint are (1) for a declaration that the defendants 1 and 2 have

no right to drain their water from their fields into the fields of the plaintiff and (2) for a permanent injunction restraining the defendants from cutting

open the bund and draining their surplus water into the fields of the plaintiff. The plaintiff valued the former relief u/s 7, Clause (iv) (c) at Rs. 10 and

the latter relief u/s 7 Clause (iv) (d) at Rs. 10 and paid Court-fee on Rs. 20.

The defendants raised an objection to the correctness of the Court-fee paid by the plaintiff. Thereupon the plaintiff filed I.A. No. 189 of 1950

for revising his valuation with reference to the first prayer. Plaintiff offered to pay fixed Court-fee of Rs. 15 on that prayer, treating it as one coming

under Article 17 (B) of the 2nd Schedule. On this application the learned District Munsiff passed the following order:

The relief relates to an immovable property and the Court-fee has to be paid as per the notification, namely, half the value as u/s 7, Clause (v).

It is against this order that the present revision petition has been filed.

It will be noticed that the plaintiff himself valued the reliefs on the footing that they fall u/s 7, Clause (iv) (c) and (d) and on that basis put his own

valuation on those reliefs and paid Court-fee. Though the application for amendment proceeded on the footing that the prayer for declaration did

not fall u/s 7, Clause (iv) (c) the plaint as originally framed with reference to the relief for injunction stood untouched. The case therefore appears to

have been presented in the lower Court on the footing that Section 7, Clause (iv) (d) applied and there is, therefore, some Justification for the

learned District Munsiff applying the notification relating to injunction. I will presently show that even applying that notification the order for

payment of additional Court-fee is erroneous. In this Court also arguments proceeded on the same lines. On behalf of the petitioner it was argued

that the proviso in Section 7, Clause (iv) (c) applied only to cases in which the plaintiff claims a relief of possession and that even when injunction is

prayed for u/s 7, Clause (iv) (d) the same principle would be applicable. Reliance was placed on behalf of the petitioner on the decision of

Somayya, J., ''K. J. V. Naidu In re'' ILR (1946) Mad 885. In answer to this contention it was argued by Mr. V. V. Raghavan, the learned counsel

who appeared on behalf of the Government Pleader that the authority relied on by Samayya, J., in ''K. J. V. Naidu in re'' ILR (1946) Mad 885

dealt with Section 7, Clause 4 (c) and that with reference to injunction the decision of Wadsworth, J., in ''Venkataranga Rao v. Sita Ramaehandra

Bao'' ILR (1941) Mad 157 applied and that in view of the notification which came into force on 1-11-1943 the decisions referred to by Somayya,

J., in ''K. J. V. Naidu in re'', ilk (1946) Mad 885 were inapplicable .and that the judgment in that case though decided after the notification did not

deal with it and therefore the matter required reconsideration.

It will be convenient before examining these authorities to refer to the law on the subject before it was amended by the Madras Act V of 1922.

Section 7, Clause (iv) of the Court-fees Act enacts that in the six classes of suits mentioned in that Sub-section the plaintiff shall state the amounts

at which he values the reliefs sought and the Court-fee shall be payable according to the amount at which the relief is valued in the plaint. Three of

the classes of the suits mentioned in that Subsection may be noticed. Section 7, Clause (iv) (c) refers to suits to obtain a declaratory decree or

order where consequential relief is prayed. Section 7, Clause iv (e) deals with suits to obtain an injunction and Section 7, Clause iv (e) applies to

suits for a right to some benefit to arise out of land (not herein otherwise provided for). In these classes of suits the plaintiff is free to put his own

valuation and it is well settled that that valuation is not open to revision by Court, vide: ''Ramiah v. Rama-swami'' 24 M.L.J. 233 following the

decision in ''Guruvajamma v. Venkatakrishna Chetti'' 24 Mad 34 and ''Chinnammal v. Madarsa Rowther'' 27 Mad 430 and reaffirmed by the Full

Bench in ''Arunachalam Chetti v. Rangaswami pillai'' 38 Mad 922. Whether we regard the present suit as one for a declaration and consequential

relief falling u/s 7, Clause (iv) (c) or a suit for an injunction falling u/s 7, Clause (iv) (d) there can be no doubt that under the Court-fees Act of

1870 the plaintiff''s valuation would be final and not liable to be questioned. Then we come to the Madras Amendment Act V of 1922. The only

change introduced which is relevant for the purpose of this case is the addition of the proviso in Section 7, Clause (iv). The proviso is in these

terms:

In suits coming under Sub-clause (c) in cases where the relief sought is with reference to any immovable property such valuation shall not be less

than half the value of the immovable property ''calculated in the manner provided for by paragraph (v) of this section.

The precise meaning of the words ""with reference to immovable property"" has been considered in .several decisions. In ''Venkatakrishna Pattar'',

In re 52 M.L.J. 121 the plaintiff sued for a declaration that he had a right of way and drainage over the defendant''s lands and for injunction. The

District Munsiff held that the suit was for a declaration and consequential relief and came u/s 7, Clause (iv) (c) and applying the amendment

directed payment of the half the Court-fee payable in a suit for possession u/s 7, Clause v. The plaintiff was content to leave it at that but the

defendant took the matter in revision and contended that the suit must be regarded as one for possession and full Court-fee was payable u/s 7,

Clause V and not merely half thereof. Jackson, J., rejected this contention. This decision is strongly relied. on by V. V. Raghavan on behalf of the

respondent. But it is clear that Jackson, J., did not decide that such suits fell within Section 7, Clause (IV) (c). He only decided that it did not fall

u/s 7, Clause V. It may be noted that in ''Venkatakrishna Pattar In re'' 52 M.L.J. 121 as in the present case the plaintiff sought to establish a right

of easement and prayed for consequential relief by way of injunction but as the plaintiff himself had submitted to the order of the lower Court this

Court had no occasion to decide under which clause it fell. But the words ""Where relief was sought with reference to any immovable property

were construed as meaning ""involving possession of lands, houses or garden"" and as not including easements. This case, there-fore, is really some

authority for the position that easement suits do not fall u/s 7(iv)(c). In ''Gurunatha v. Secretary for State'', 59 Mad 962, the plaintiff claimed that he

had a right to take water from the river Cauvery without liability to pay any irrigation cess and the suit was for declaration of that right and for

refund of cess recovered by the Government. The District Munsiff had held that the suit fell u/s 7, Clause (iv) (c) and that the plaintiff should

accordingly value the suit as for possession u/s 7, Clause (v) and pay Court-fee on the basis of half the value of the plaint mentioned properties. In

setting aside this order Varadachariar, J., observed that the consequential relief being refund of cess paid it was not one with reference to

immovable property and that therefore. Section 7, Clause (iv) (c) did not apply. The learned Judge added that in substance the suit was one for

easement and that it fell u/s 7, Clause (iv) (e). This again is an authority against the position that easement suits fall u/s 7(iv)(c). In ''Venkataranga

Rao v. Sita Ramaehandra Rao'' ILR (1941) Mad 157 the plaintiff claimed that he had a right to the surplus water overflowing the defendant''s

tanks and prayed for an injunction restraining him from interfering with the customary flow of water and he fixed his own valuation and filed the suit

in the Court of the District Munsiff. The defendant contended that the suit fell u/s 7, Clause (iv) (c) and that on a proper valuation on the basis of

Section 7, Clause (v) the suit would be beyond the jurisdiction of the District Munsiff. Wadsworth, J., held that the only prayer in the plaint was for

an injunction, that it was not obligatory on the part of the plaintiff to pray for a declaration and that the suit did not fall within Section 7, Clause (iv)

(c) but that it came u/s 7, Clause (iv) (d). It may also be noted that at page 163, the learned Judge referred to the suit as one for easement. This

might sound as an authority for the position that when injunction is prayed for in suits for easement that relief is within Section 7, Clause (iv) (d) but

it may be noticed that prior to the notification which came into force on 1-11-43 it made no difference whether the relief claimed fell u/s 7, Clause

(iv) (d) or u/s 7, Clause (iv) (e) either of them being untouched by the Madras Amendment of 1922.

On 1-11-1943 the notification already mentioned came into force and the contention on behalf of the respondent is that the present suit is

governed by the new notification and the Court-fee payable is on half of the value for possession. The amendment reads thus:

In suits for injunction where the relief is sought with reference to any immovable 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 less than half

the value of the Immovable property calculated in the manner provided for by paragraph (v) of Section 7 of the Court-fees Act of 1870.

It is with reference to this notification that the lower Court has passed the order which is now under revision.

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. That is not the case here. Here we have got a simple case

of easement involving no question of title or possession. Therefore even applying Section 7, Clause (iv) (d) the order of the lower Court asking the

plaintiff to value the suit as one for possession and bay half the Court-fee payable thereon is clearly erroneous.

The petitioner relies upon the decision in ''K. J V Naidu'', In re ILR (1946) Mad 885. There the plaintiff claimed a right to graze cattle, to take

leaves for manure and cut and take wood for fuel free of charge from the forest belonging to the defendant and for a prohibitory injunction and

valued the suit u/s 7, Clause (iv) (e). The defendant contended that the suit fell u/s 7, Clause (iv) (c) and that if the relief is valued with reference to

Section 7, Clause (v) the suit would be beyond the jurisdiction of the District Munsiff''s Court. The lower Court had held that the suit was properly

valued and the defendant took up the matter in revision. Somayya, J., agreed with Varadacharlar, J., that the words ""with reference to immovable

property"" must be construed as meaning by way of possession of immovable property and that Section 7, Clause (iv) (c) was, therefore,

inapplicable to easement suits. Mr. V. V. Raghavan argues that Somayya, J., does not refer to the notification which had come into existence on 1-

11-1943 and its application to the suit which was one for injunction. That is so. But I have already held that the notification does not apply to

easement suits and that in such suits the plaintiff is not bound to value the relief as one for possession and pay court-fee on half of the value thereon.

In the result, I agree with the conclusion reached by Somayya, J., in ''K. J. V. Naidu'', In re ILR (1946) Mad 885.

So far I have discussed the case on the lines on which it was presented in the lower Court and argued here. But in my opinion there is simple

answer to the contentions on behalf of the respondent. Section 7, Clause (iv) (e) provides for suits for a right to some benefit to arise out of land

not herein otherwise provided for. The language of this clause will apply to suits to enforce rights of easement. There is ample authority for the

position that easement suits should be valued u/s 7, Clause (iv) (e). In ''Jugal Kishore v. Tale Singh'' 4 A.H. 320 it has been Held that the claim for

easement fell u/s 7, Clause (iv) (e) (vide pages 329, 330.) In ''Sundar Mal v. J. C. Murray'' 16 Ind Cas 953 (Call this is what the learned Judges

Mookerjee and Beachcroft JJ., observe with reference to the scope of Section 7, Clause (iv) (e).

It has been argued that in as much as the plaintiff seeks to recover possession of a mine the suit may be treated as one for enforcement of a right

to some benefit to arise out of land. But this meaning cannot by any stretch of language be attributed to the clause in question which obviously

applies to suits for enforcements of a right of easement.

In ''Gurunatha v. Secretary of State'' 59 Mad 962 Varadachariar, J., observed at page 965 as follows:

if the suit is substantially one for easement it will fall not under Sub-section (c) of Section 7(iv) but under Sub-clause (e) and the Madras

Amendment introduced a proviso only to Sub-clause (c) and not to Sub-clause (e).

In ''K. J. V. Naidu'', In re ILR (1946) Mad 885 Somayya, J., observed at page 889 ""Obviously such cases come u/s 7, Clause (iv) (e)."" I respect

fully agree. In my opinion suits in which plaintiff claims right of easement fall u/s 7, Clause (iv) (e) and as no amendment or notification applies

thereto the plaintiff is at liberty to put his own valuation and that is final. I may observe that elaborate discussions as to the scope of the amendment

and notification and the meaning of the words ""with reference to immovable property"" in Section 7iv(c) and (d) somewhat tend to obscure the

position with reference to suits claiming easement rights."" In view of the authorities already mentioned in which it has been held that easement suits

fall u/s 7, Clause (iv) (e) the plaintiff is within his rights in haying fixed the valuation at Rs. 20. He no doubt said in the plaint that the reliefs fall u/s 7,

Clause (iv) (c) and 7 Clause (iv) (d). But the correct position in law is that these reliefs fall u/s 7, Clause (iv) (e). He has therefore not even to

amend the plaint and pay Court-fee on the prayer for declaration under Article 17-B of Schedule II. The Court-fee paid by him is sufficient and

this revision is accordingly allowed. There will be no order as to costs.