Ram Singh vs Sukhram and others

Bhat, J.

(1) This is revision petition directed against the order of the District judge. Udhampur. dated 3171970. The point that has been decided in this case

by the two courts below is that the suit land is not separately assessed to landrevenue nor is it a definite share of an estate separately to

landrevenue therefore the courtfee 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 Courtfees Act were invalid. Keeping in view the importance of the point 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.

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

some land was required 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 courtfee at 8 times of the landrevenue and fixed the jurisdictional value of fifty times the landrevenue assessed on these 19

Kanals 5 tnarlas. An objection was taken by the defendant that this land was worth more than a lac of Rupees alongwith the structures and was

not separately assessed to landrevenue nor was it one entire estate or a definite share of an estate and therefore, courtfee on the land would not be

payable under section 7 (v) (b) of the Court fees Act. Therefore, the sole question that arises for determination in this case is whether the suit land

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

63.800/mhich 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 1411970 was unsuccessful before the learned District Judge,

Udhampur.

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

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

land revenue of. 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 landrevenue from which Mr. Grover arguad that the landrevenue assessed on 19 kanals 5 marlas has been

retained on these 16 kanals 9 marlas and 6 sarsaies

(5) After the argument were addressed, tb"" learned counsel for respondent showed us a copy of some revenue record where in the land revenue

of these 16 kanals 9 marlas and 6 sarsaies is shown at a different figure In the first place we can not 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 prorata basis i. e. working out the revenue for these

16 kanals 9 marlas and 6 sarsaips from the total landrevenue 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 is

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

(6) I have bad occasion to make certain observations about the scheme of the Courtfees and suits valuation Act in a Civil revision No. 83 of 1971

Bodhraj and another vs. Shankar Dass and ors decided by me in November 1971. I have there in pointed out that certain provisions of the Court

fees Act a,e highly technical, irrational, discriminatory and unjustified; for instance I have pointed out that the same property, which may be the

subject matter of two suits. In diffe. rent kinds of suits pertaining to the same property, which 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 courtfee on the market value which may run in to thousands of Rupees. Again if the suit is covered by section 7(v) (b) the valuation for

courtfees is to be eight times the land revenue. If it is covered by section 7(v) (b) it is the market value which determine the valuation for courtfees.

In all these cases the matter in controversy may be the same, yet the courtfees payable is different in each case. The rules made under the suits

Valuation Act are equally defective. In suits pertaining to immovable property again there are different standards for valuation of a suit for courtfee

which are given in 7(v) of the Courtfees 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 Bodhraj and another versus Shankar Dass and others that the Court fees

and the Suits valuation Acts require serious reconsideration, redrafting and simplification. That is a matter for the legislature and I trust the

Legislature will at its earliest convenience give a careful attention to this fact.

(7) However apart from these general observations the application of Sec: 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) (d) ""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

revenueeight 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 assessedthe market value of the land

(8) 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"" has 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, onehalf onethird, onefourth, onetenth, etc: etc: but there are authorities which say that even if there is a fractional

share such as threeeight, fivenineth, seveneleventh so on and so forth not with a numerator of one, even that can be called a definite share because

the area and the landrevenue 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 under section 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 act of 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 under section 7 (v) (b) because whatever the area or the landrevenue 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 landrevenue.

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.

(9) 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 then

provisions of Section 7 (v) (d) applies are : AIR 1930 Lah 18 ', AIR 1933 Oudh. 533 AIR 1951 Mad. 698. 147 I. C. 852, AIR i937 All 206,

AIR 1952 Mad. 88, AIR 1923 Rangoon 246 and AIR 1947 Mad. 297 (F. B )

(10) AIR 1930 Lah. 182 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 land 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.

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

fraction of a distinct revenue paying are a 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 definite fractional share on five times the Govt. revenue.

(12) AIR Mad 698 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 under section 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.

(13) 147 (1934) I C 852 lays down that in a suit for preemption 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 Govt. revenue.

(14) AIR 1937 All. 206 among other things that a case would be governed by Subsection (v) (b) if 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 aforesaid but would be governed by

subsection (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

(15) In AIR 1952 Mad. 88 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, courtfee is payable under section 7 clause 5 d) on the

'market value' of the property.

(16) In AIR 1923 Rangoon 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, courtfee was held payable under section 7(v)(d) and not under section 7(v)(b).

(17) In AIR 1947 Mad 297 (F. B.) it was held that where a parson brings a suit for possession of specific immovable property that has been

allotted to him in a previous partition, the courtfee must be paid on the market value of the land notwithstanding that it had formed part of an estate

paying revenue to the Government.

(18) For the other proposition that Section 7(v)(b) would apply only if the numerator is one the suit should be for one half, onefourth, onetenth,

onetwentieth etc; and if the numerator is not one then Section 7(v)(d) would apply which means if the suit is for threeseventh, nineeleventh, twenty

five twentieth etc. The following authorities may be cited:

(19) AIR 1924 Mad 646, AIR 1955 Tripura 23, AIR 1918 Mad 25 and AIR 1933 All. 414.

(20) In AIR 1924 Mad 646 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 therefore separately assessed to revenue falls within CI. (v)(d) and not under CI. (v)(a) or (b) of Section 7. Courtfee

should therefore bi paid on the market value of the property in suit. At page 647 the learned Judge remarked quoting an Allahabad authority viz;

(1913) 33 All. 630 ""it was held that subclause (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,

onethird or any other fractional shaee of the entire estate.' Then the learned Judge remarked that the view is correct and ""I respectfully follow it.

(21) In AIR 1956 Tripura 25 the suit was for declaration of Taluka right in 2 kanal 4 gandas 2 karas of taluka land and for recovery of khas

possession in the suit land and for mesne profit. 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 per. sons 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 can not 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,

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

(23) 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 subdivided

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 word ""separately assessed.1'

(24) 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 word ""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.

(25) 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 Subsection 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

(26) AIR 1933 All 414 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 Khewat Khatas is not governed by

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

limit of saying that:

Althongh 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.

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

(28) AIR 1943 Lah 15. AIR 1957 A. P. 607, AIR 1948 EP 9 1879 Punjab Records 67 page 226, AIR 1937 Nagpur 100 AIR 1943 Peshawar

96 and AIR 1927 Mad 1002.

(29) In AIR 1945 Lah 15 which was decided Harries G. J. and 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 CI; (v)(b) are applicable and not the provisions of

CI: (v)(d).

(30) In my previous decision viz: Bodhraj & another Vs. Shanker Dass and ors referred to above I have used the language that their is neither logic

nor reason behind this hyper technical and irrational classification in the Courtfee 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 sec: 7 CI (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 Courtfees Act, and is

reported as 16 All. 493. In that case it was held by Burkitt J. that if the land in suit forms simple fraction of the land that has been assessed to land

revenue then, Sec. 7 CI. (v(b) is applicable, but if the fraction is a complicated one and has to be arithmetically worked out the CI (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 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 courtfee. As regards the argument that if it is simple fraction, then Section 7(v)(b) Court Fees

Act applies, but it is complicated one and has to be arithmetically worked out then CI. (v)(d) applies.

(31) In 1978 Punjab Records 67, page 226 the plaintiff suit 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 bur sevenfifteenth of Khata No: 409 which was 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 CourtFees 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 sevenfifteenths, and that whole Khata being part of an estate paying annual revenue to

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

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

(32) In AIR 1937 Nagpur 100 the plaintiff sued for five annas share in Mauga 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 under Section (v)(b) and not under section 7(v)(d) of the Courtfees Act.

(33) In AIR 1943 Peshawar 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 courtffe should be paid on five dims such portion of the revenue separately assessed on that part as may be rateably payable in

respect of that share.

(34) In AIR 1927 Mad. 1002 it was held that a fractional share indicated in tha Government of India notification covers not only a case where the

plaintiff claim'! a certain fraction of a survey number but it also covers a case where ( he claims a certain definite area within the survey number, for

instance, where he claims 3 acres 30 certs 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 page 100506 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, 1/4 . and not a

complicated fraction like 19/48 or 37/72 etc. as one may get in Mohamadan law cases. If the words ""fraction 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 Courtfee should depend upon the ability to evade or not. The Courtfees Act is a fiscal enactment and ought to be liberally

construed........

(35) 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 longer area. All that can be said against the plaintiff is that what he claims is a fraction with defined

boundaries, but the words 'fraction share' covers both a definite fraction and also an indefinite fraction, where as 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 £ or £ but

not to a definite or J. I do not see any reason why the word ""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 share, 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 lam unable to agree wirh

Burkitt J, and Tudball J, in the Allahabad cases.

Apart from these authorities there are two decisions of this Court, one is reported as AIR 1951 J&K 18 and the other is AIR 1960 J&K 23.

There seems some contradiction in these two decisions AIR 1951 J&K 18 is a case of Division Bench consisting of Shri Wazir C J and Shahmiri J

and has laid down that a suit for possession or preemption for a portion of an estate can come under CI. (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. 6593 measuring 169 kanals and 2 marlas situate in village Paloura Tehsil Jammu. They valued the suit for possession for purposes

of courtfee 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.

(37) In AIR 1960 J&K 23 it was again decided by a Division Bench consisting of Wazir C J. and K. V C 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 separately

assessed part of an estate comes within Cl. (b of Section 7 (v) of the Court Pees Act and the value thereof for purposes of court fee arid

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 Lah.

15 cited above was relied upon.

(38 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 courtfee 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 hyper

technical, irrational, illogical and discriminatory. It has been well put by Suleiman C J. and Bajpai J of the Allahabad High Court in AIR 1937

Allahabad 206 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 nor possible to ascertain the proportionate liability of that specified plot so far as the payment of Govt. revenue is concerned. In the

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

(d).

(39) Therefore, in my opinion following AIR 1945 Lah. 13 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 landrevenue, the case will be clearly governed by the provision

of CI. (v) (b) of Section 7;

(ii) Where the landrevenue 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 Cl. (v) (b) of Section. 7. It is not necessary that it should be a share such as, 1/5,1/30, it may be J, 5/17,3/31 etc.

(iii) Where the suit is for a specific plot in a khewat which consists of many plots or 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 Leh. 182 AIR 1952 Mad. 88, AIR 1637 All. 206.

(40) 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 than decide the question of court fee afresh applying the principles of

law enunciated above. This revision petition in 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 102 72.