1. These two revision applications involve the question of computation of Court-fee payable under Section 6(v) of the Bombay Court-fees Act, 1959, in respect of Bagayat land with residential houses situated thereon. Both the applications can be disposed of by a common judgment.
2. In Civil Revision Application No. 36 of 1975, the facts are that there is a Bagayat, Wadi consisting of coconuts, betel-nuts, plantain trees etc. Structures like a residential house styled as 'Madina Lodge', guest house, cattle-shed, engine room etc. are built on the Bagayat land. The Bagayat land bears Survey No. 44 Hissa No. 1 having the area of 2 acres and 203/4 gunthas, assessed at Rs. 49-13-0. Madina Lodge and other structures bear municipal out numbers. For the purpose of the Court-fee, the plaintiffs valued the Bagayat land at 121/2 times the assessment levied on them. As regards jurisdiction, the Bagayat land was valued at Rs. 1,50,000/-. the residential house was valued at Rs. 12,000/-, the guest house at Rs. 5,000/-, the cattle-shed at Rs. 2,000/- and another shed near the well at Rs. 500/-. The defendants challenged the valuation both as regards the Court-fee and jurisdiction. The learned Civil Judge, Senior Division, Alibag, tried three preliminary issues. One issue related to the market value of the suit properties and the second whether the suit had been correctly valued for the purposes of Court-fees and jurisdiction. The learned Civil Judge, by his order dated 21st October, 1974, held that the market value of the suit properties was Rupees 1,69,500/- as valued by the plaintiffs. As regards the Court-fee, the learned Judge followed the decision in Mumtaz Begum v. Aman Ullah Khan AIR 1964 J. & K. 34. The learned Judge held that the suit land cannot be a garden, but only land paying land revenue to the Government. He, therefore, held that the plaintiffs have correctly valued the suit land for the purpose of Court-fee.
3. In Civil Revision Application No. 179 of 1973, the suit property comprises of a house and land where coconut and betel nut trees are grown. The plaintiff valued her claim for ownership and possession of the land on the basis of 121/2 times the assessment being Rs. 292.62 and the house at Rs. 200/- and Rs. 5/- for mesne profits, making a total of Rupees 495.62. For the purpose of jurisdiction, the land and the house were valued at Rs. 4,300/- excluding the mesne profits of Rs. 5/-. The defendants contended that the suit was not properly valued. The learned Civil Judge, Senior Division, Alibag, appointed a Court-Commissioner to ascertain the value of the suit property. The Court Commissioner valued the entire suit property at Rs. 21,000/-. The learned Civil Judge reduced this value to Rs. 18,000/-, and by his order dated 26th October, 1972, directed that for the purpose of Court-fee, the suit be valued at Rs. 18,005/-.
4. Both these orders were passed by the same learned Judge but he took different views. By his order dated 26th October, 1972, he held that land on which coconut and betel nut trees were grown was liable to pay Court-fee on the basis of the market value. In the subsequent order dated 21st October, 1974, he held that such a land could not be a garden and the Court-fee on the basis of 121/2 times the assessment was correct.
5. The relevant provisions of the Bombay Court-fees Act, 1959 (hereinafter referred to as 'the Bombay Act'), which call for determination in this case, are reproduced:
'6. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:-
(v) In suits for the possession of land, houses and gardens- according to the value of the subject-matter; and such value shall be deemed to be, where the subject-matter is a house or garden- according to the market value of the house or garden and where the subject-matter is land, and -
(a) where the land is held on settlement for a period not exceeding thirty years and pays the full assessment to Government - a sum equal to twelve and a half times the survey assessment;
(b) where the land is held on a permanent settlement, or on a settlement for any period exceeding thirty years, and pays the full assessment to Government - A sum equal to twenty times the survey assessment; and
(c) where the whole or any part of the annual survey assessment is remitted - a sum computed under sub-paragraph (a) or sub-paragraph (b), as the case may be, in addition to twenty times the assessment, or the portion of assessment, so remitted.'
6. Since various decisions under the Court-fees Act, 1870 (hereinafter referred to as 'the Central Act'), have been cited, it is convenient to reproduce the relevant part of the Central Act.
'7. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:-
(v) In suits for the possession of land, houses and gardens - according to the value of the subject-matter; and such value shall be deemed to be - Where the subject-matter is land, and -
(a) where the land forms and entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Collector's register as separately assessed with such revenue,
and such revenue is permanently settled - ten times the revenue so payable;
(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 aforesaid;
and such revenue is settled, but not permanently-
five times the revenue so payable;
(c) where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue,
and nett profits have arisen from the land during the year next before the date of presenting the plaint-
fifteen times such nett profits;
but where no such nett profits have arisen therefrom - the amount at which the Court shall estimate the land with reference to the value of similar land in the neighborhood;
(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 as above mentioned - the market value of the land:
provided that, in the territories subject to the Governor of Bombay in Council, the value of the land shall be deemed to be-
(1) Where the land is held on settlement for a period not exceeding thirty years and pays the full assessment to Government - a sum equal to five times the survey-assessment;
(2) where the land is held on a permanent settlement, or on a settlement for any period exceeding thirty years, and pays the full assessment to Government - a sum equal to ten times the survey-assessment; and
(3) where the whole or any part of the annual survey-assessment is remitted - a sum computed under paragraph (1) or paragraph (2) of this proviso, as the case may be, in addition to ten times the assessment, or the portion of assessment; so remitted.
Explanation - The word 'estate' as used in this paragraph, means any land subject to the payment of revenue, for which the proprietor or a farmer or ryot shall have executed a separate engagement to Government, on which, in the absence of such engagement, shall have been separately assessed with revenue;
(e) Where the subject-matter is a house or garden - according to the market-value of the house or garden.'
7. Mr. Limaye, the learned Counsel appearing for the petitioners in Civil Revision Application No. 36 of 1975, has contended that if the suit property answers the description of a garden, then it will have to be valued on the basis of the market value, despite the fact that such a land is assessed to land revenues. He submitted that one cannot by describing a land as a Bagayat land take it outside the description of a garden, if it is otherwise or in fact a garden. In support, he has relied upon Mt. Hakim Bibi v. Mir Ahmad, AIR 1930 Sind 15; Jogendra Nath v. Firm Sarup Chand, : AIR1936Cal264 ; Jwala Devi v. Ahmad Hasan, AIR 1938 Oudh 40 and Madhaorao v. The State of Maharashtra, : 3SCR604 .
8. The learned Government Pleader argued that the suit property, on the plaintiffs' own showing, consists of a residential house and guest house surrounded by about 21/2 acres of garden land growing fruit trees. The house and the garden should be treated together and the Court-fee is not to be valued on the basis of sub-clauses (a), (b) and (c) of clause (v) of Section 6 of the Bombay Act. On the other hand, Mr. Pendse, the learned counsel for the respondents-plaintiffs, submitted that the word 'land' or 'garden' is not defined either under the Bombay Act or under the Central Act. Maharashtra Land Revenue Code, 1966, sub-section (16) of Section 2 thereof defines land. According to this definition, 'land' includes benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the each, and also shares in, or charges on, the revenue or rent of villages, or other defined portions of territory. According to the learned Counsel though this Code does not provide a distinction between 'land' or 'garden', nevertheless trees grown on land would be things attached to the earth and therefore it is a land and not a garden. Such trees may be grown naturally or they may be grown by human endeavor. He also relied upon Sections 64 and 67 (I) of the Code. Section 64 makes provision for all land, whether applied to agricultural or other purposes, and wherever situate, to be liable to the payment of land revenue to the State Government. Section 67 (1) provides for manner of assessment of land revenue with reference to the use of the land for the purpose of agriculture, residence, industry, commerce and for any other purpose. The State Government, submitted the learned Counsel, recognises the suit land as agricultural land by reason of the suit land being assessed to land revenue. In this connection, he also referred to the definition of the word 'agriculture' as defined in sub-section (1) of Section 2 of the Bombay Tenancy and Agricultural Lands Act, 1948. Under this Act, the word 'agriculture' includes horticulture, the raising of crops, grass or garden produce, the use by an agriculturist of the land held by him or a part thereof for the grazing of his cattle, the use of any land, whether or not an appendage to rice or paddy land, for the purpose of rab manure, but does not include allied pursuits, or the cutting of wood only. In support of his argument, the learned Counsel relied upon Raghu Huvana v. Yellappa, 1884 Bombay High Court Printed Judgments 150; Audathodan Moidin v. Pullambath Mamally ILR 188() Mad 301 , Kallappa Goundan v. Abdul Rajim ILR 40 Mad 824 : AIR 1918 Mad 805 ; Vayyapuri Vathiar v. Somianarayana AIR 1948 Mad 344; and Mumtaz Begum v. Aman Ullah Khan AIR 1964 J &K; 34.
9. The views of the different High Courts may be noted. In Mt. Hakim Bibi v. Mir Ahmad AIR 1930 Sin 15, the scope of Section 7 (5) (e) of the Central Act fell for consideration. On evidence, the trial Court had come to the conclusion that the suit land was not agricultural land but was used as a garden pure and simple. The learned Judges of the Judicial Commissioner's Court, relying upon ILR (1917) Mad 824 : AIR 1918 Mad 805, held that where the land falls within the meaning of the expression 'garden' though it may at the same time be land paying assessment to Government, if requires court-fee as provided in sub-clause (e) of clause (5) of Section 7 of the Central Act. The learned Judges were not inclined to follow the decision of this Court in 1884 Bombay High Court Printed Judgments 150, in which it was held that as the land under consideration paid annual revenue to Government, the case fell under para (e) of clause (5) of Section 7 of the Central Act. That judgment of this Court consists of only one line and no reason has been given in support of it.
10. In Jogendra Nath v. Firm Sarup Chand : AIR1936Cal264 , the subject-matter of the suit for possession was a garden and the Court held that the subject-matter being a garden the case comes under Section 7 (v) clause (e) of the Court-fees Act, 1870, for the purposes of computation of Court-fees. In that case, the plaintiff had inter alia prayed for recovery of possession of certain property which was described in the Schedule to the plaint as 'garden land together with trees, etc.' This property was assessed at Rs. 21-35. The plaintiff valued the suit by multiplying the assessment by 10, and accordingly paid the Court-fee. The defendants raised an objection to the valuation and stated that the Court-fee payable on the subject-matter was on the basis of the market value and that the market value was more than Rs. 5,000/- and so the suit was beyond the jurisdiction of the Munsif held in favour of the defendants are ordered the return of the plaint for presentation to the proper Court. While the suit was pending before the learned Munsif of Alipur. The learned Munsif held in favour of the defendants and ordered the return of the plaint for presentation to the proper Court. While the suit was pending before the learned Munsif, the plaintiff has applied for amendment of the plaint by striking out the words 'garden' and 'trees, etc.'. It appears that this amendment was either not pressed or disallowed. However, the matter was taken by the plaintiff to the learned Subordinate Judge in appeal and ultimately to the High Court in revision. The High Court was unable to pronounce any final views on account of the uncertainty of the subject-matter of the suit being land or garden. The case was remanded to the Court of first instance to decide the character of the subject-matter after giving the parties an opportunity to lead evidence. After referring to the provisions of Section 7 (v) clauses (a) to (d) and clause (e) of the Central Act, the learned Judge observed as follows:-
Reading these clauses and clause (e), it appears to me that for the purpose of computing valuation of the subject-matter in a land for possession, the legislature has drawn a distinction between the case where the subject-matter is land, and where the subject-matter is a house or garden. If the subject-matter of the present case is really a garden, in my opinion it will come under clause (e) sub-section (5), Section 7, Court-fees Act, and the Court-fee will have to be paid on the market value of the garden and not on the basis of annual revenue of the land.'
11. In Jwala Devi v. Ahmad Hasan, AIR 1938 Oudh 40 (DB), the facts were that the suit was for possession of land together with buildings and trees thereon and for Rs. 2053-8-0 as damages and mesne profits. The plaintiff-respondent claimed to have under-proprietary rights in the land by virtue of a permanent lease executed in his favour by the predecessor-in-interest of the defendants-appellants. The lease was said to be for building purposes and the plaintiff claimed to have constructed a building on the land and to have planted a guava grove. The plaintiff valued the relief for possession of land at Rs. 100/- without separately valuing the building and the guava grove. It was contended in that case that the building and the trees were appurtenant to the land and no separate Court-fee was required. This contention was rejected because the building in question was not a tenant's house or any other building necessary for the enjoyment of the land but a substantial structure used as a tannery. Similarly, the trees in suit were not self-grown trees which might be said to go with the land but a grove planted by the plaintiff-respondent. The fact that the building was contracted by the plaintiff or the grove was planted by the plaintiff was considered to be immaterial. The Court was guided by another factor that the building in suit fetch an annual rent of Rs. 120/-. The facts in that case are clear about the land and the building but not about the grove. It appears that the guava grove was taken to be a garden and as such there was no dispute about this aspect of the case. Moreover, the plaintiff had specifically prayed for possession of the trees along with the land. The Court held that the trees and the buildings were as much the subject-matter of the suit as the land itself.
12. In 1884, a Civil Reference was decided by this Court by a Division Bench (See Raghu Huvana v. Yellappa Bin Shidapa, Bombay High Court Judgments Appellate Side, Bombay, 1884 at page 150). In that case, the plaintiffs sought to recover possession of a house and Bagayat land. The Bagayat land was assessed at Rs. 24/-. For Court-fee purposes, the plaintiffs valued the Bagayat land at five times the assessment. According to the learned Subordinate Judge, the Bagayat land should have been valued as 'garden' and Court-fees paid according to its market value. Charles Sargent and C. G. Kemball, JJ., took the view that as the land under consideration the case falls under para (a), and not para (e), clause (v), Section 7 of the Central Act. The judgment runs in a single sentence, but it appears that in the opinion of the learned Judges, the mere fact that the land was assessed was sufficient to place it in para. (a) of clause (v) of Section 7 of the Central Act and it could not be classified as 'garden'.
13. Four Judges of the Madras High Court in Audathodan Moidon v. Pullambath Mamally ILR (1889) Mad 301 , were required to decide whether 'paramba' was to be treated as a garden or as land assessed to revenue. The land used for paramba was not assessed. In the revenue records, parambas were classed as Bhagayat or garden land. Fruit trees of all sorts, pepper vines, plantains and the like were cultivated immediately round the house, if there was one, as generally there was a house was one, as generally there was a house in paramba, but not always. The learned Judges of the Madras High Court did not lay sown as rule regarding paramba to be treated as a garden for the purposes of the Court-fees of each case, so as to attract Court-fee either under sub-clause (c) or (e) of clause (v) of Section 7, according to the circumstances of each case. While considering the provisions of Section 7 of the Central Act as regards the meaning to be given to the word 'garden' they observed thus:-
'The word 'garden' is nowhere defined in Act VII of 1870, but from its occurring in connection with the word houses, we are of opinion that the term refers primarily to a garden in the English sense, - ornamental or pleasure or vegetable, - and that parambas do not ordinarily come under that category.'
Thus a restricted meaning is given to the word 'garden'.
14. Reliance was also placed on Kullappa Goundan v. Abdul Rahim ILR (1917) Mad 824 : AIR 1918 Mad 805. This was a Letters Patent Appeal against the decision of a Single Judge who did not follow ILR (188() Mad 301 considered above, since according to the learned single Judge, paramba land on which there were coconut trees being in Malabar was not assessed and all that the Full Bench decided was that the case fell either under clause (v) (c) or (e) of Section 7 of the Central Act, according as the paramba was of a description that would come under the definition of a garden or not. The material facts were that the plaintiff claimed to be a purchaser of suit lands under a sale-deed and sued for recovery of possession. The lands were assessed lands, on some portions of which coconut trees were planted. The plaintiff valued the suit five times the revenue assessment of Rs. 364-11-0 and also valued the coconut trees at Rs. 500/-. The defendant contended that part of the property claimed is a coconut garden on which several (at least 500) coconut trees were grown and as such the subject-matter is a garden and the Court-fee payable would be on its market value. In the Letters Paten Appeal, the Division Bench set aside the order of the learned Single Judge and restored that of the District Munsif. The learned Judges followed the Full Bench decision. Ayling, J., stated:-
'As pointed out by a Full Bench of this Court in Audathodan Moidon v. Pullambath Mamally ILR (1889) Mad 301, there is much significance in the juxtaposition of the words 'house or garden' in that clause; and it should be taken as referring primarily to a garden in the English sense ornamental or pleasure or vegetable.'
Seshagiri Ayyar J., who delivered a separate judgment, stated that one of the points to be considered was whether irrigable land on which coconut trees have grown becomes a garden and in this connection he says:-
'As regards the first of these questions, the decision in Audathodan Moidin v. Pullambath Mamally seems to be conclusive. The word 'garden; in Section 7, clause (5) (e) of the Court-fees Act is apparently used in a technical sense. The Act was drafted by an English lawyer and, as was pointed out by Mr. Justice Ayling in the course of the argument, the term 'garden' connotes in the English language that it is either an appendage to the house or is a place which is kept for purposes of pleasure. The fact that the term 'garden' is coupled with the term 'house' shows that what the legislature contemplated is a piece of ground which is used by the owners of a house as a place of recreation and as one on which vegetables and the like are grown for purposes of home consumption. The definition of the term 'garden' in Stroude's Judicial Dictionary supports this view. It may be that an enclosed place detached from the house is resorted to by the owner of it for purposes of pleasure. Such a ground would be a garden. I do not mean to suggest that no profit should be derived form such a place. I am only referring to the meaning which the term ordinarily bears. No doubt in common parlance, we speak of a coconut tope or a mango grove as a garden. If that is the legal acceptance of the term, a place where tamarind trees are grown should similarly be regarded as a garden. There is something repugnant in the idea of calling a group of tamarind trees or iluppa trees as a 'garden'. I do not think the term 'tope; which is employed largely in India is in any way synonymous with the term 'garden'. I am, therefore, of opinion that this piece of ground on which coconut trees have been grown, is not a 'garden'.
15. In Vayyapuri Vathiar v. Somianarayana, AIR 1948 Mad 344, in a revision petition, that Court had to consider the manner of valuation provided for by paragraph V of Section 7 of the Central Act. The lower Court had valued the immoveable property owned by a temple consisting of a cocoanut tope of the extent of 12 or 13 acres, under Section 7, clause (v) sub-clause (e) as if it were a garden. From the plaint it was seen that the cocoanut tope was really an inam land falling under Section 7 clause (v) (c) of the Central Act. On that basis the court-fee was valued 15 times the net profits. In this connection, it was observed thus-
'In ILR 40 Mad 824: AIR 1918 Mad 805, it has been held that if the land is assessed land falling under Section 7, clause (v) (b), the fact that there is a cocoanut tope in such land would not bring such land under Section 7 clause (v) (e), Court-fees Act. On the analogy of that decision I think where the land is inam land falling under Section 7, Control. (v) (c), Court-fees Act, the fact that there are cocoanut trees in the land is no ground for requiring the land to be valued on such basis. I, therefore, hold that the cocoanut tope should be valued on the basis of 15 items the net profits.'
The views of the Madras High Court are consistent with the view of this Court in 1884 Bombay High Court Printed Judgments 150. The Madras High Court has also held that if the land is assessed land, then the mere fact that cocoanut is grown would not take such land under sub-clause (e) so as to attract the Court-fee on the basis of its market value or, in other words, such a land would not become a garden within the meaning of sub-clause (e) and be liable to Court-fees on its market value.
16. in Mumtaz Begum v. Aman Ullah Khan, AIR 1964 J. and K. 34, the learned Judges, after considering several decisions, observed that the term 'garden' connotes a small piece of land which is usually adjacent to a dwelling house and used for the purpose of growing flowers, vegetables or fruit for human consumption or is kept in order to beautify and add to the grandeur or value of the dwelling house or is otherwise used for pleasure. In that case, the plaintiff had brought a suit for a declaration that she was entitled to 1/3 rd of the suit property which consisted of lands in village Zakura Tehsil Ganderbal and village Gulab Bagh Tahsil Ganderbal and village Gulab Bagh Tehsil Ganderbal, In para. 6 of her plaint, the plaintiff had made a mention of the fact that a portion of the land in suit was converted into an orchard and the rest of it was that a portion of the land in suit was converted into an orchard and the rest of it was under cultivation. The trial Court held that the plaintiff should value her plaint, so far as the orchard was concerned, as its market value. It was noted by the learned Judges that the trial Court as well as the plaintiff had used the word 'orchard' but while passing the order the trial Court had confused the word 'orchard' with the word 'garden'. This was a case in which on the same land part of it was used for growing fruits and the rest of it was under cultivation.
17. Bearing in mind these various decisions and if regard be had to the provisions of the Maharashtra Land Revenue Code, 1966, and the Bombay Tenancy and Agricultural Lands Act, 1948. I am of the opinion that the term 'garden' must be given the meaning in ILR (1889) Mad 301 : ILR 40 Mad 824 : AIR 1918 Mad 805 : AIR 1964 J. & K. 34. The term 'garden' implies as referring primarily to its putting up for ornamental or for affording pleasure and delight or as one on which vegetables, fruits and flowers are grown. Such a garden is usually an appendage to a dwelling house and its chief object is to add grandeur and beautify the living place.
18. Another view which emerges is that if land is assessed land, the case cannot fall in para (e) of clause (v) of Section 7 of the Central Act or clause (v) of Section 6 of the Bombay Act. In Madhaorao v. The State of Maharashtra, : 3SCR604 , their Lordships were not required to consider as to what is a 'garden', but in considering the provisions of the Bombay Act, laid down that (I) where the subject-matter is land, the Court-fee has to be calculated according to what has been provided in sub-clauses (a), (b) and (c) of Section 6(v) with regard to these categories of land; (ii) where the subject-matter is land but such land has not been assessed to land revenue and is not covered by sub-clauses (a), (b) and (c), then the Court-fee will have to be calculated under some other provision of the Maharashtra Act or the Central Act but not on the basis of the value of the land, and (iii) where the subject-matter is a house or garden, the Court-fee has to be paid according to its market value: Thus, where land is assessed to land revenue, it must fall in any one of the sub-clauses and would not, therefore, attract Court-fee on the basis of the market value of the land. Their Lordships have observed that if there is any lacuna in the Bombay Act, that would not justify the Court in straining the language of clause (v).
19. The Bagayat lands in the present case cannot be classified as 'garden' so as to attract Court-fee on the basis of their market value. These lands pay annual revenue and, therefore, the Court-fee has to be calculated according to the provisions of sub-clause (a) of clause (v) of Section 6 of the Bombay Act.
20. In the result, in Civil Revision Application No. 36 of 1975, the order of the learned Civil Judge, Senior Division, Alibagh, dad 21st October, 1974, would stand confirmed. The petition is dismissed. Rule is discharged with costs.
21. In Civil Revision Application No. 179 of 1973, the order of the learned Civil Judge Senior Division, Alibagh, dated 26th October, 1972, is set aside. The plaintiff is required to pay the Court-fee on the basis of 121/2 times the assessment as valued by her. The petition is allowed. The rule is made absolute with costs.
22. Order accordingly.