Ram Singh vs Sukhram and others

J.N. Bhat, J.—This is a revision petition directed against the order of the District Judge, Udhampur, dated 31-7-1970. The point that has

been decided in this case by the two courts below is that the suit land is not separately assessed to land-revenue nor is it a definite share of an

estate separately assessed to land-revenue, therefore the court-fee payable should be on the market value of the land. This point comes up for

consideration many times before the courts in the State.

This case came up before me. The correctness of a Division Bench authority reported as AIR 1960 J. & K 23 was disputed and it was further

argued that the rules framed under the Court-fees Act were invalid. Keeping in view. the importance of the points raised, I referred the case to his

Lordship the Chief Justice for constituting a Full Bench.

We have heard the learned counsel for the parties.

It seems that the entire estate consisted of 19 Kanals 5 marlas and was assessed to land revenue of Rs. 3 Annas 7 and pies 3. Out of this land

some land was acquired by the Government leaving behind 16 Kanals 9 marlas and 6 sarsaies for which a suit for possession was brought by the

plaintiff. The plaintiff paid court-fee at 8 times of the land-revenue and fixed the jurisdictional value at fifty times the land-revenue assessed on these

19 kanals 5 marlas. An objection was taken by the defendant that this land was worth more than a Lac of Rupees alone with the structures and

was not separately assessed to land-revenue nor was it an entire estate or a definite share of an estate and therefore, court-fee on the land would

not be payable u/s 7 (v) (b) of the Court-fees Act. Therefore, the sole question that arises for determination in this case is whether the suit land a.

e., 16 kanals 9 marlas and 6 sarsaies are separately assessed to land revenue or is an entire estate or a definite share of an estate. The defendant

produced three witnesses but none of them has made any statement which would throw any light on this point. Their evidence was confined to the

market value of the land and the construction standing thereon. The trial court on this evidence held that the market value of the land was Rs.

65,800/-which determined its value for purposes of court-fee and jurisdiction. Therefore, it directed the petitioner to take back the plaint and

present it in a proper court. An appeal against this finding of the Sub Judge, Udhampur dated 14-1-1970 was unsuccessful before the learned

District Judge Udhampur.

Mr. Grover, the learned counsel for the petitioner has argued that the point on which the case has been decided does not at all arise in this case.

He has invited our attention to a copy of a Jamabandi of the year 1999/2000 where these 19 Kanals 5 Marlas of land have been assessed to land

revenue of Rs. 3 Annas 7 and Pies 3. This copy does not at all indicate that after the acquisition of 2 kanals 15 Marlas and 3 Sarsaies of land there

was any diminution or change in the land-revenue from which Mr. Grover argued that the land-revenue assessed on 19 Kanals 5 marlas has been

retained on these 16 Kanals 9 Marlas and 6 Sarsaies.

After the arguments were addressed, the learned counsel for the respondent showed us a copy of some revenue record wherein the land

revenue of these 16 Kanals 9 Marlas and 6 Sarsaies is shown at a different figure. In the first place we cannot take notice of this record at this

stage. Apart from that fact it is not clear whether this land revenue has been calculated by the patwari on a pro rata basis i. e., working out the

revenue for these 16 kanals 9 marlas and 6 sarsaies from the total land-revenue of Rs. 3 Annas 7 and Pies 3 or there is a separate assessment on

these 16 kanals 9 marlas and 6 sarsaies. This point cannot be determined here and the case shall have to be sent back to the trial court for further

enquiry and determination of this point. But as already remarked this point arises for consideration in numerous cases in all courts in the State, we

think it desirable to clearly state our view on the point of law involved in the case.

I have had occasion to make certain observations about the scheme of the Court-fees and Suits Valuation Acts in a Civil Revn. No. 83 of 1971

(J. & K.), Bodhraj v. Shankar Dass decided by me in November 1971. I have therein pointed out that certain provisions of the Court-fees Act are

highly technical, irrational, discriminatory and unjustified; for instance I have pointed out that the same property may be the subject-matter of two

suits. In different kinds of suits pertaining to the same property, which may have market value of lacs of Rupees, if the suit is one for injunction, the

plaintiff has the option to value it at any notional figure which may be ridiculous but if the suit is for the possession thereof, he has to pay court-fee

on the market value which may run into thousands of Rupees. Again if the suit is covered by Section 7 (v) (b) the valuation for court-fees is to be

eight times the land revenue. If it is covered by Section 7 (v) (d) it is the market value which determines the valuation for court-fees. In all these

cases the matter in controversy may be the same, yet the court-fee payable is different in each case. The rules made under the Suits Valuation Act

are equally defective. In suits pertaining to immoveable property again there are different standards for valuation of a suit for court-fee which are

given in Section 7 (v) of the Court-fees Act. There is not the slightest justification for all these classifications. The least that can be said and I have

dealt with this point exhaustively in my decision above referred to namely Civil Revn. No. 83 of 1971 (J. & K.) that the Court-fees and the Suits

Valuation Act requires serious reconsideration, re-drafting and simplification. That is a matter for the legislature and I trust the Legislature will at its

earlier convenience give careful attention to this fact.

However apart from these general observations the application of S. 7 (v) (b) and S. 7 (v) (d) of the Court-fees Act to a particular set of cases

has given rise to many contradictory pronouncements of different High Courts. The material provisions are 7 (v) (b)-

where the land forms an entire estate or a definite share of an estate, paying annual revenue to Government or forms part of such estate and is

recorded as separately assessed with such revenue-eight times the revenue as payable: and vide (d) ""where the land forms part of an estate paying

revenue to Government but is not a definite share of such estate and is not separately assessed - the market value of the land.

The question that frequently arises to what cases would (b) apply and what are the cases which would be covered by (d). There would be no

difficulty when we have to deal with a case which forms an entire estate. In that case the valuation is to be eight times the revenue payable but the

difficulty or I should say confusion arises where we have to interpret the words ""or a definite share of an estate or forms part of such estate and is

recorded as separately assessed with such revenue."" The words ""definite share"" have been subjected to different interpretations by various High

Courts and even the same High Court has not given uniform decisions. Some High Courts have held that 'a definite share' means a fraction of a

share whose numerator is one i. e., one-half one-third, one-fourth, one-tenth, etc. etc.: but there are authorities which say that even if there is a

fractional share such as three-eighth, five-ninth, seven-eleventh so on and so forth not with a numerator of one, even that can be called a definite

share because the area and the land-revenue can be arithmetically worked out. There are yet some authorities which have laid down that if a

certain specific plot from an estate is the subject-matter of a suit, the case would be covered by Section 7 (v) (d) of the Court-fees Act but if it is a

fraction then it would be a case which would fall u/s 7 (v) (b).

I will discuss some of the authorities of the different High Courts and try to show where the conflict lies. Before I do that till the legislature makes a

necessary and suitable amendment, some meaning has to be given to both these provisions of law because the legal presumption is that no part of a

statute is redundant. If we accept the proposition that a definite share is one which can be mathematically worked out, then all cases would fall u/s

7 (v) (b) because whatever the area or the land-revenue thereon the science of mathematics is so vast as to give us the proportion of the property

in dispute to the entire estate which may be assessed to land-revenue. We have therefore, to make a distinction, however artificial irrational or even

illogical it may be, so that cases can safely be covered by one or the other of these provisions. What should be the workable interpretation of these

two provisions of law. I shall state after discussing the various authorities of different Courts on this point.

The authorities which lay-down that when a specific or a well defined plot out of a big Khewat or estate-is the subject-matter of litigation them

provisions of Section 7 (v) (d) applies are; AIR 1930 182 (Lahore) , AIR 1933 533 (Oudh); Bendapudi Veera Venkata Subba Rao and Another

Vs. Rao Venkata Rao, ; Randhir Singh and Another Vs. Randhir Singh and Others ; Chandrala Seshayya and Others Vs. Chandrala

Lakshmamma and Others, ; AIR 1923 Rang 246 and P. Kesanna Vs. Boya Bala Gangappa and Another, .

AIR 1930 182 (Lahore) lays down that if a land is assessed to land revenue and a suit is brought for a share in a specific plot of land, which

plot is not separately assessed to lend revenue, the case is governed by Section 7 (v) (d) and not by Section 7 (v) (b) and the court-fee has to be

paid on the market value of the land.

AIR 1933 533 (Oudh) lays down that in a suit for pre-emption in respect of a separate plot of land which does not constitute any definite

fraction of a distinct revenue paying area and is not separately assessed to revenue, the court-fee should be paid on the market value of the land in

suit, and not, as the case where the suit is for a definite fractional share on five times the Government revenue.

Bendapudi Veera Venkata Subba Rao and Another Vs. Rao Venkata Rao, lays down that where the suit is for a specific plot of land with

boundaries which can be put in possession of the plaintiff without partition the plaintiff cannot evade payment of court-fee u/s 7 (v) (d) by alleging

in the plaint that the property was undivided southern portion of a big plot, which the plaintiff was entitled to have separated and to be put in

separate possession. A separate property with definite boundaries can never be a fractional share of a property.

AIR 1933 533 (Oudh) lays down that in a suit for pre-emption in respect of separate plots of land which did not constitute any definite fraction

of a distinct revenue paying area and were not themselves separately assessed to revenue, the court-fee should be paid on the market value of the

land in suit and not as is the case where the suit is for a definite fractional share, five times the Government revenue.

Randhir Singh and Another Vs. Randhir Singh and Others says among other things that a case would be governed by sub-section (v) (b) if the

land forms en entire estate or a definite share of an estate paying annual revenue to Government or forms part of such estate end is recorded as

aforesaid but would be governed by sub-section (v) (d) if it forms part of an estate paying revenue to Government, but is not a definite share of

such estate and is not separately assessed as aforementioned.

In Chandrala Seshayya and Others Vs. Chandrala Lakshmamma and Others, it was held that where the plaintiff is claiming not a partition of an

unspecified fractional share of undivided land but is claiming a specific portion of that undivided land, namely, the 'northern half of the land, court-

fee is payable u/s 7, clause 5 (d) on the 'market value' of the property.

In AIR 1923 Rang 246 where the suit land was of individual field plots which form, part of a holding but which are not separately assessed to

land revenue, court-fee was held payable u/s 7 (v) (d) and not under S. 7 (v) (b).

In P. Kesanna Vs. Boya Bala Gangappa and Another, it was held that where a person brings a suit for possession of specific immovable

property that has been allotted to him in a previous partition, the court-fee must be paid on the market value of the land notwithstanding that it had

formed part of an estate paying revenue to the Government.

For the other proposition that Section 7 (v) (b) would apply only if the numerator is one i. e., the suit should be for one half, one-fourth, one-

tenth, one-twentieth etc.: and if the numerator is not one then Section 7 (v) (d) would apply which means if the suit is for three-seventh, nine-

eleventh, twenty-five-twenty-eighth etc. etc. The following authorities may be cited:-

Kandasami Goundan and Another Vs. Subbai Goundan and Another, ; AIR 1956 Tri 25: AIR 1918 Mad 25 and Mt. Haliman Vs. Mt. Mediya, .

In Kandasami Goundan and Another Vs. Subbai Goundan and Another, it was held that a suit for recovery of a specific plot of land situated

within a permanently settled estate but not constituting a definite share thereof or separately assessed to revenue falls within clause (v) (d) and not

under clause (v) (a) or (b) of Section 7. Court-fee should therefore be paid on the market value of the property in suit. At page 647 the learned

Judge remarked quoting an Allahabad authority viz: ILR (1910) 33 All 630 ""it was held that sub-clause (a) referred only to a definite fraction or

share of an estate, and not to any piece of land which formed a plot defined by metes and bounds included in an estate. In other words, that the

clause would apply only when the suit was for a half, one-third or any other fractional share of the entire estate."" Then the learned Judge remarked

that the view is correct and ""I respectfully follow it.

In AIR 1956 Tri 25 the suit was for declaration of Taluka right in 2 kanals 4 gandas 2 karas of taluka land and for recovery of khas possession

in the suit land and for mesne profits. The learned Judge discussing different authorities said at page 26 that:-

In the present case the appellant does not sue for land jointly owned by two persons and it was not mentioned in the plaint that the specific plots in

question formed a share of the joint property............ If the plaintiff-appellant wanted to rely on this fact, he should have clearly mentioned it in the

plaint in para. 6 but this was not done. The land in question cannot be arithmetically worked out as a proportion or a fraction of the property that

has been assessed to land revenue and so Section 7 (v) (b) cannot be deemed to be applicable to this case.

The finding was that the valuation for court-fee should be the market value of the land.

In AIR 1918 Mad 25 a Division Bench of that Court held that a suit for recovery of land forming part of entire estate but neither sub-divided

nor separately assessed to land revenue, the court-fee was payable on the market value of the land. At page 25 of the judgment it was said that:-

............ I am asked to say by the plaintiff that the true construction of this Act is that because you can by a mathematical calculation arrive at what

fraction of the whole patta any piece of land is therefore any and every bit of land that you like within the whole patta must be considered to be

separately assessed to revenue. That seems to me to be a proposition which is utterly incapable of being supported if for no other reason because

it gives no meaning whatever to the words ""separately assessed.

Further on the learned Judge says:-

............Then it is said even if this is not a part of an estate separately assessed to revenue nevertheless it may be regarded as ""a definite share of an

estate."" Once more I make the same criticism on that construction as upon the other. It entirely ignores the word ""definite"" because every share in

an estate is in some sense a definite share, and I have no doubt that what is meant by the words ""definite share"" is an undivided tangible fraction of

an estate as distinct from a defined demarcated plot which has been taken out of an estate............

The learned Judge was however compelled to remark:

............ I am conscious of the extreme inconvenience of this decision but I see no possible escape from that construction of the Act. It leads no

doubt to this absurdity in some cases. For instance you might have a case where if you sue for the recovery of the whole plot if it falls under sub-

section 5 (b) taking five times the revenue, would result in a lower value than if you sue for a portion of the land which according to this view, has

to be taken as the market value............

Mt. Haliman Vs. Mt. Mediya, lays 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 separately assessed with revenue. Hence a suit for possession of fractional shares of Khawat Khatas is not governed

by Section 7 (v) (b) but Section 7 (v) (d) and the court-fee is payable on the market value of the fractional shares. This authority has gone further

to the limit of saying that:-

Although each Khewat khata is recorded as separately assessed with revenue, nevertheless it cannot be held to be an ""estate"" within the meaning

of the clause unless separate engagement has been entered into between Government and the proprietors in respect of the revenue assessed upon

the Khewat khata.

For the third proposition that if a share can be worked out mathematically Section 7 (v) (b) applies, the following authorities may be cited:-

AIR 1945 15 (Lahore) , Rayavarapu Jagannadha Rao Vs. Yeleti Padmaraju and Others, , AIR 1948 EP 9, 1879 Punj Re 67 page 226, AIR

1937 100 (Nagpur) , AIR 1943 Pesh 96 and Subramania Ayyar Vs. V. Rama Ayyar and Others, .

In AIR 1945 15 (Lahore) which was decided by Harries. C. J. and Mahajan. J. Mahajan, J. who later became the Chief Justice of India while

delivering the judgment has held that:-

Whenever a person sues for possession of a plot of land which can be arithmetically worked out as a proportion or a fraction of the property that

has been assessed to land revenue and is so noted in the Jamabandi, the provisions of Section 7. Cl, (v) (b) are applicable and not the provisions

of Cl. (v) (d).

In my previous decision viz: Civil Revn. No. 83 of 1971, D/- 19-11-1971 (J. & K.) referred to above I have used the language that there is

neither logic nor reason behind this hypertechnical and irrational classification in the Court-fees Act. I find myself in very good company when I find

that Justice Mahajan has remarked as under:-

As already indicated, the learned subordinate Judge held that the suit instituted by the plaintiffs was governed by the provisions of Section 7, Cl. (v)

(d). Court-fees Act, on the ground that the land in suit did not form a fractional share of a khata. The learned Subordinate Judge in support of his

view relied on a decision of the Allahabad High Court, which followed an earlier decision of its own in a reference under the Court-fees Act, and is

reported as ILR (1894) All 493. In that case it was held by Burkitt, J. that if the land in suit forms a simple fraction of the land that has been

assessed to land revenue, then Section 7. Cl. (v) (b) is applicable, but if the fraction is a complicated one and has to be arithmetically worked out

then clause (v) (d) applies. The ratio underlying this decision is that each one of the plots sued for cannot be said to possess the same value and

therefore it is not possible to rateably distribute the revenue of the whole Khata on the plots sued for. Speaking for myself, I see neither logic nor

reason behind this statement of the law. When a person sues for land jointly owned by two persons, even if specific plots are sold, in law it is

treated as a sale of a share of the joint property. No co-sharer has any right to sell specific plots out of the Khata and, therefore, the value of an

individual plot comprised in the joint khata is wholly immaterial in determining the point of court-fee. As regards the argument that if it is a simple

fraction, then Section 7 (v) (b). Court-fees Act applies, but if a complicated one and has to be arithmetically worked out then clause (v) (d)

applies............

In 1879 Punj Re 67, page 226 the plaintiff sued for possession of 214 kanals 8 marlas of land on the allegation that defendants sold it to him. The

sale deed had conveyed to the defendant no specific land but seven-fifteenths of Khata No. 409 which was a joint Khata comprising 460 kanals

10 marlas of land. The Court below rejected the plaint on defendant refusing to file additional stamps as on a suit valued in accordance with

Section 7 (v) (d) of the Court-fees Act but the High Court held that the defendants prayer really was for possession jointly with the defendants of

Khata No. 409 with an interest therein to the extent of seven-fifteenths, and that the whole Khata being part of an estate paying annual revenue to

Government and recorded in the Collector's register as separately assessed with revenue within the meaning of Cl. (v) (b) the value of the suit must

be deemed to be five times the revenue payable on the Khata.

In AIR 1937 100 (Nagpur) the Plaintiff sued for five annas share in Mauza Kamthi together with certain specified sir and khudkast fields and

also two malik makbuza fields. It was held that court-fee will be payable on 71/2 times the revenue of the entire village and nothing more and the

suit will fall u/s 7 (v) (b) and not u/s 7 (v) (d) of the Court-fees Act

In AIR 1943 Pesh 96 the suit was for a fractional share of a part of an estate recorded as separately assessed to land revenue. It was held that

the court-fee should be paid on five times such portion of the revenue separately assessed on that part as may be rateably payable in respect of

that share,

In Subramania Ayyar Vs. V. Rama Ayyar and Others, it was held that a fractional share indicated in the Government of India notification

covers not only a case where the plaintiff claims a certain fraction of a survey number but it also covers a case where be claims a certain definite

area within the survey number, for instance, where he claims 3 acres 30 cents out of a survey number whose extent is 7 acres 30 cents though 3

acres 70 cents is a fraction of 7 acres 30 cents viz, 37/73 of 7 acres 30 cents. The learned Judge on pages 1005-06 said:-

............It is noticeable that the Act uses the words ""definite share"" and while making provision for a definite share or a part of an estate it did not

make any provision for a part of separately assessed survey number. The notification did not use the words ""definite share"" but used. the words

fractional share"". I do not understand any of the judges who have considered the matter to say that a fraction means a simple fraction like 1/2 1/3

or 1/4 and not a complicated fraction like 19/48 or 37/72 etc. as one may get in Mahomedan law cases. If the words ""fractional share"" can cover

any kind of fraction, the only question is: Does it make any difference when a plaintiff mentions an area which can be worked out as a fraction of

the whole but does not mention it by describing it as a fraction. In my opinion it does not. The opposite conclusion can be easily evaded by a

clever plaintiff describing the plot he claims not as so many acres and cents but as the north-western 37/73 of such and such a survey number or

something like that. I do not think that liability to pay Court-fee should depend upon the ability to evade or not. The Court-fees Act is a fiscal

enactment and ought to be liberally construed............

Later on the learned Judge says:-

............But it seems to me that the words ""fractional share"" are not inapplicable to a case where the plaintiff claims 3 acres 30 cents out of 7 acres

30 cents, as the share he claims is a fraction of a larger area. All that can be said against the plaintiff is that what he claims is a fraction with defined

boundaries, but the words 'fractional share' cover both a definite fraction, and also an indefinite fraction, whereas the learned Judges who

considered the matter seems to limit the words to the case of indefinite fraction. They think that the notification applies to unspecified 1/2 or 1/4,

but not to a definite 1/2 or 1/4. I do not see any reason why the words ""fractional share"" should be so limited. At any rate. I am not doing any

violence to the English language when I say that the words cover both definite and indefinite fractional shares. Tudball. J., seems to think that a

specific share is not covered by ""fractional share"" and there is some difference between a specific share and a definite share. The result is I am

unable to agree, with Burkitt. J., and Tudball, J., in the Allahabad cases. Apart from these authorities there are two decisions of this Court, one is

reported as Prithi Singh and Others Vs. Milkha Singh and Others, and the other is AIR 1960 J. & K. 23. There seems some contradiction in these

two decisions, Prithi Singh and Others Vs. Milkha Singh and Others, is a case of Division Bench consisting of Shri Wazir, C. J. and Shri Shahmiri,

J. and has laid down that a suit for possession or pre-emption for a portion of an estate can come under clause (b) of Section 7 (v) only if it is

either a definite share of an estate or a part of the estate which is separately assessed to revenue. There were two suits for joint possession on the

basis of a right of prior purchase against the defendant for 33 kanals 14 marlas and 22 kanals 14 marlas out of Khewat No. 22/23 assessed to

land revenue of Rs. 65-9-3 measuring 169 kanals and 2 marlas situate in village Paloura Tehsil Jammu. They valued the suit for possession for

purposes of court-fee 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. Their Lordships held that the case was covered by Section 7 (v) (d) and not by Cl. (v) (b) and the court-

fee should be payable on the market value of the lands.

In AIR 1960 J. & K. 23 it was again decided by a Division Bench consisting of Wazir, C. J. and K. V. G. Nair, J. They took a contrary view

and held that a suit for possession of a specific plot of land not separately assessed to revenue but forming a fractional share or a portion of a

separately assessed part of an estate comes within clause (b) of Section 7 (v) of the Court-fees Act and the value thereof for purposes of court-fee

and jurisdiction shall be determined in terms of land revenue rateably payable thereon and not in terms of its market value. In this case AIR 1945

15 (Lahore) cited above was relied upon.

Now in this conflict of decisions among various High Courts and even in this High Court itself it becomes necessary to lay down some guiding

principles for the determination of the question of court-fee in respect of land. In my opinion the following principles can be safely laid down,

though again I would venture to say that it is only to justify the existence of these two separate provisions in the Court-fees Act that this arduous

attempt is made to categorise cases which should fall under one or the other of these categories otherwise to me this distinction appears to be

hypertechnical, irrational, illogical and discriminatory. It has been well put by Sulaiman, C. J. and Bajpai, J. of the Allahabad High Court in Randhir

Singh and Another Vs. Randhir Singh and Others that:-

where there is an estate paying annual revenue to Government and a fractional share of that estate is transferred then it is easy to ascertain the

proportionate amount of the Government revenue on the property transferred. On the other hand, if the property transferred is not a fractional

share of an estate paying revenue to Government but is only a specified part of such estate and such specified part is not separately assessed to

revenue, it is not possible to ascertain the proportionate liability of that specified plot so far as the payment of Government revenue is concerned. In

the former case, where the revenue can be ascertained the case would be governed by sub-section (v) (b) while in the latter case by sub-section

(v) (d)."" Therefore, in my opinion following AIR 1945 15 (Lahore) and other authorities mentioned in that group and the decision of this Court

reported as AIR 1960 J. & K. 23 the following should be the principles :-

(i) where the suit is for an entire Khewat or estate which is separately assessed to land-revenue, the case will be clearly governed by the provisions

of clause (v) (b) of Section 7;

(ii) Where the land-revenue can be calculated by an arithmetical process, a share of the suit land will be deemed to be a definite share within the

meaning of clause (v) (b) of Section 7. It is not necessary that it should be a share such as 1/4, 1/5, 1/30. It may be 3/4, 5/17, 3/31 etc.

(iii) Where the suit is for a specific plot in a Khewat which consists of many plots or a particular defined portion thereof, of which the land revenue

cannot be separately calculated, because of difference in quality of the land and other circumstances, the case will be covered by Section 7 (v) (d).

Such cases are referred to in AIR 1930 182 (Lahore) , Chandrala Seshayya and Others Vs. Chandrala Lakshmamma and Others, , Randhir Singh

and Another Vs. Randhir Singh and Others .

After having laid down these principles of law, we remit the case back to the trial court which will give time to the parties to produce further

evidence with respect to the suit land in regard to the court-fee matter and then decide the question of court-fee afresh applying the principles of

law enunciated above. This revision petition is therefore, accepted and the case sent back to the trial court as indicated above. The parties are

directed to appear before the trial court on 10-2-1972.

S.M.F. Ali, C.J.

I agree.

Jaswant Singh, J.

I also agree.

Case remanded.