Wazir Lachman Das and Others vs State of Jammu and Kashmir and Others

S. Murtaza Fazl Ali, J.—This is an application against an order of the Sub - Judge (A.D.M.) Jammu deciding that the court - fees paid on

the suit should be on the market - value of the property in dispute under the provisions of Section 7 Clause 5(d) of the Court - Fees Act.

The present suit was filed by the Plaintiffs for recovery of possession against the Defendants on the allegation that the Plaintiffs were the original

tenants of the land in question and were conferred proprietary rights by Allan of his Highness Maharaja Bahadur and were thereafter forcibly

dispossessed by the Defendants. In the plaint, the Plaintiffs have clearly stated that the land in question was assessed to land revenue and formed a

share of an estate paying revenue to the Government. In support of the allegations in the plaint the Plaintiffs have filed the record of rights of 1970,

Dal Bach ""revenue charge book"" of the years 1974-75 and certain Girdawaris for the year 1988 to 2004. The Defendants in their written

statement controverted the allegations of the Plaintiffs in their plaint and alleged that the land in question was not agricultural land. The Defendant

pleaded in his written statement that the land was run one which was assessed to land revenue. Before the court below learned Counsel for the

Plaintiffs conceded that in the present case Section 7 Clause 5 Sub-clause (d) would apply and on the basis of this concession the court held that

the court - fees should be paid on the market - value of the properties in question.

Mr. Prakash appearing for the Petitioners submitted that any concession on a question of law or for that matter as to whether Clause (v)(d) of

Section 7 of the Court - Fees Act would apply, would not be binding on the Petitioners. The argument appears to be sound and must prevail. The

Court should have determined the court - fees payable on a perusal of the provisions of the Court Fees Act rather than determining this point on

the concession of the parties. Moreover, Anr. ground given by the court below is that the property in dispute is situated within Municipal limits. In

fact, the Court Fees Act does not make any difference between the lands which are situated within or beyond municipal limits. It is well settled that

the question as to what court - fees should be paid should be determined not on what Defendant says but on the allegations of the Plaintiff in his

plaint. There was a clear indication in the plaint that the land was a part of an estate paying revenue to Government which was supported by the

documentary evidence. In these circumstances Section 7 Clause (v)(b) of the Court Fees Act would apply to the facts of the present case. The

Advocate General submits that before Sub-clause (b) would apply the land must be assessed to land revenue even at the time when the suit is

instituted. I am unable to agree with this argument. Section 7 Clause (v)(b) of the Court Fees Act and Explanation thereto runs as under:

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 so payable.

Explanation:

The word ""Estate"" as used in this paragraph means any land subject to payment of revenue for which the proprietor or farmer or raiyat shall have

executed a separate engagement to Government or which in the absence of such engagement shall have been separately assessed with revenue.

The words ""shall have been separately assessed with revenue"" are wide enough to include those lands which were assessed to land revenue even

before the institution of the suit though at the time of the suit the land ceases to be assessed to land revenue. It is obvious that if a trespasser enters

into possession of the land which was assessed to land revenue but ceases to pay the land revenue to Government, by such an act of trespass he

cannot alter the original character of the land. Indeed if this was so, then the very object of the Act would be defeated in most cases. In my

opinion, it is in order to apply Section 7 Clause (v)(b) of the Court Fees Act to such cases, then the Legislature in its wisdom thought it fit to

introduce the Explanation which makes the position absolutely clear.

Thus the aforesaid Section of the Court Fees Act requires only two conditions to be fulfilled:

(i) that the subject - matter of the suit should be land forming an estate or share of an estate.

(ii) that the said land must be paying annual revenue to Government.

Once these two conditions are satisfied, the court fees will be paid only as provided by the said Section and no other.

In view of these circumstances therefore on the allegations made in the plaint, in my opinion, it is a clear case where the court - fees would have

to paid in accordance with the provision of Section 7 Clause (v)(b) of the Court Fees Act that is to say on eight times the revenue so payable. This

being the position, it follows that the suit shall be valued at 50 times for the purpose of jurisdiction and eight times for purposes of court - fees. It

follows that if on the quantum of court - fees payable, the order of the court below is set aside, any order passed subsequent to the order of the

trial court would also fall to the ground.

The application is accordingly allowed and the rule is made absolute. There will be no order as to costs. FG/VSB. Application allowed.