Prithi Singh vs Milkha Singh & others

Shahmiri, J.

[1] This judgment shall dispose of civil Revision Petitions Nos. 88 & 83 of 2004 against the orders of the Dist. J., Jammu, affirming the direction of

the Munsiff, Jammu, by which the two plaints in the two cases were ordered to be returned to the plffs. for presentation to the proper Court on the

ground that the Court of the Munsiff had no jurisdiction to try the suits. The facts out of which these revision applications have arisen are briefly as

follows:

[2] Two suits for joint possession on the basis of the right of prior purchase were instituted by the plffs.applicants against the defts.opposite party,

consisting of vendors & vendees of two portions of land, 33 Kanals & 14 Marias & 22 Kanals & 14 Marias, out of Khewat No. 22/23 assessed

to land revenue of Rs. 6593 measuring 169 Kanals & 2 Marias situate in village Paloura, Tehsil Jammu, for Rs. 10,000 & Rs. 6,000 vide sale

deeds dated 12th jeth & nth Jeth 2001 respectively. The plfi's. preemptors valued the subject matter of each of their suits for purposes of courtfee

at 8 times the proportionate land revenue assessable on the fractional share sought, calculated in reference to the amount of land revenue payable

on the whole Khewat namely, Rs. 6593 & for purposes of jurisdiction at 50 times such proportionate land revenue. The defts. took an objection

that the valuation in the plaints for purposes of jurisdiction was not correctly given & that the suits should be valued according to the market value

of the property sold. The learned Munsiff decided that both the suits fell under cl. (c) of E. 1 & not under cl. (a) of B. 1 read with B. 2 of the Rules

made under Ss. 3 & 9, Suits Valuation Act. In concluding part of his order he observed that even if the suits were to come under cl. (a) of B. 1, 50

times revenue payable on the Khewat would amount to more than Rs. 1,000 & even thus he would have no jurisdiction to try these suits. On

appeal the learned Dist. J. upheld the decision of the learned Munsiff in both the cases, As the wording of Cls. (a) & (c) of R. 1 of the Rules mada

under Ss. 3 & 9, Suits Valuation Act, bears close resemblance to that of Cls. (b) & (d) of Subs. (v) of S. 7, Courtfees Act, A as these clauses of

R. 1 of the Rules under the Suits Valuation Act are dependant upon the aforesaid clauses of S. 7 (v), Courtfees Act, the learned Dist. J. discussed

at length the question whether these suits fell under S. 7 (v) (b) or S. 7 (v) (d), Courtfees Act, & came to the conclusion that the valuation of these

suits for purposes of courtfee must be under cl. (d)of S. 7(v), Courtfees Act, & not under Cl. (b) thereof & for purposes of jurisdiction the cases

clearly fell under cl. (c) of H. 1 of the Rules made under the Suits Valuation Act, & not under cl. (a) thereof.

[3] Elaborate arguments have been addressed to us by the learned counsel on either side on the point whether these cases fall within cl. (b) or cl.

(d) of s. 7 (v), Courtfees Act. A large number of rulings of the different High Courtsincluding those of this Courthas been cited before us. These

included, Reference under Courtfees Act, 1870, S. 5 16 ALL. 493, Chandhan v. Bishan Singh, 33 ALL. 630; Mt. Haliman v. Mt. Mediya, A.I.R

(20) 1933 ALL. 414 ; Bandhir Singh v. Bandhir Singh, A.I.R. (24) 1937 ALL. 206; Fata v. Khan Bahadur, 46 P. R. 1908 : Kuljas Rai v.

Palasingh, A.I.R. (32) 1945 Lab.. 15; Subramania Ayyarv. BamaAyer, A.I.R. (14) 1927 Mad. 1002; Purshotam Lal v. Piyare Lal, A.I.R. (35)

1943 E. P. 9; 6 J. & K. L. R. 61; 4 J. & K. L. R. 325 and 3 J. & K. L. R. 73. Cls. (b) & (d) of S. 7 (v), Court. fees Act, run as follows :

(b) where the laud forms an 'entire estate, or a definite stare of an estate, paying annual revenue to Govt. or forms part of such estate & is

recorded as separately assessed with such revenue, eight times the revenue payable,

(d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate & is not separately assessed

the marketvalue of the laud.

These clauses have got to be read along with a rule made by His Highness under s. 35, Court, fees Act, & published at p. 113 of the Rules &

Orders for the Guidance of Courts subordinate to the High Court of Judicature, Special Laws, Vol. III. It reads as follows :

(11) to direct that when a part of an estate paying annual revenue to the Govt. under a settlement which is not permanent is recorded in the

Collector's register .as separately assessed with such revenue, the value of the subjectmatter of a suit for the possession of, or to enforce a right of

preemption in respect of a fractional share of that part shall, for the purposes of the computation of the amount of the fee chargeable in the suit, be

deemed not to exceed 8 times such portion of the revenue separately assessed on that part, as may be ratably payable in respect of the share.

[4] The effect of Cls. (b) & (d) of S. 7 (v) Courtfees Act, & of the rule mentioned above has been tersely put in 16 ALL. 493 which comes to this

that where the subjectmatter of the suit is : (a) an entire estate or definite share of an estate paying revenue to Govt.; or, (b) part of an estate

recorded as separately assessed; or, (c) a fractional part of a part recorded as separately assessed under the rule, 8 times the land revenue & in

other oases the courtfee is payable on the market value of the land. In A.I.R. (14) 1927 Mad. 1002 almost all the previous case law of the

different High Courts on the subject has been discussed. Where the rule has been applied, in case of an estate, i.e., ""land subject to the payment of

revenue for which the proprietor or farmer or raiyat shall have executed a separate engagement to Govt. or which, in the absence of each

engagement, shall have been separately assessed with revenue"" (vide explanation to S. 7 (v), Courtfees Act)in other words Khewat if a part of the

estate is separately assessed a suit for fractional share of such part will be governed by cl. (b) for purposes of valuation & the courtfee will have to

be paid according to the proportional amount of revenue for the fractional share sued for. There 'is a difference of opinion, however, as to the

question whether a suit for specific plot of land comprised in a separately assessed part of an estate will come within the above rule so as to be

governed by Cl. (b) read with the rule. According to the Allahabad High Court such a suit will not come under that rule as the expression

'fractional share' therein can only refer to an indefinite share & not to a definitely demarcated area and will, therefore, fall under cl. (d) of S. 7 (v),

Courtfees Act. A.I.R. (14) 1927 Mad. 1002, however, takes the opposite view. According to it there is no weighty reason for drawing this

distinction. It also refuses to distinguish between a simple & a complicated fraction, i. e., a fraction like 1/2 or 3/4 & a fraction like 273/793. A.I.R.

(32) 1945 Lah. 15 and A.I.R. (35) 1948 E. P. 9 also take this view. For the purpose of the present case, however, it is not necessary to go into

this controversy. In these cases it is quite clear that cl. (b) of 8. 7 (v) does not apply, because the lands sold neither constitute an entireestate nor a

definite share of such an estate, nor a part of such estate recorded as separately assessed with such revenue. These cases also do not attract the

provisions of the rule, because, while in each of these suits the land in respect of which right of prior purchase is sought, is a fractional share of the

whole estate, i.e., the Kbewat, it is not a fractional share of a part of an estate or Khewat of which the land revenue has been separately assessed

& recorded in the Collector's register. If these suits are to be brought within the rule, then they must satisfy all the conditions laid down under the

rule. It is important to note that the rule does not refer to a case where an estate is recorded in the Collector's register as separately assessed with

such revenue but to a case where a part of an estate or Khewat is recorded as separately assessed to such revenue. It appears to me that so far as

this point is concerned there is no conflict whatsoever between the different authorities cited by the Learned counsel for the applicants. Even A.I.R.

(32) 1945 Lab. 15 & the basic authority on which that ruling is based, namely, 46 P. R. 1908 and the subsequent East Punjab ruling reported as

A.I.R. (35) 1948 E. P. 9 do not contradict this view. It appears that in all these cases fractional share sought was part of an estate and that part, of

which it formed a fraction, was recorded in the Collector's register as separately assessed with land revenue. It appears to me absolutely clear that

possessory or preemptive suit for a portion of an estate can come under cl. (b), only if it is either a definite share of an estate or a part of the estate

which is separately assessed to revenue & it can attract he rule under which remission is granted only if it is a fractional share of a part of Khewat

which has been separately assessed to revenue. All other cases must 'fall under cl. (d). I am, therefore, of the opinion that the learned Dist. J. has

rightly decided that the valuation for purposes of courtfee in these suits must be under S. 7 (v) (d) & not under S. 7 (v) (b). In this view it is also

clear that for purposes of jurisdiction both these suits fall under Cl, (c) of R. 1 of the Rules made under the Suits Valuation Act and not under cl.

(a). Needless to say that the view taken by me in these revision applications is also consistent with the three earlier decisions of this Court referred

to above.

[5] For the foregoing reasons, T would dismiss both the revision applications with costs.

[6] V.B.B. Applications dismissed.