1. The question in this case is whether in a suit to recover possession of land on which areca trees are standing the valuation for purposes of court-fee should be under Clause (b) of Section 7 (2) of the Mysore Court Fees and Suits Valuation Act, 1958, hereinafter referred to as Act or as under Clause (d) thereof. The plaintiff paid court-fee under Section 7 (2) (b) of the Act in the trial court although he valued the land in question on the basis of the actual market value for purposes of Jurisdiction. No objection seems to have been taken in the trial court regarding payment of court-fee. The suit was decreed. Aggrieved by this decision, the defendant filed an appeal. When the appeal (Civil Appeal No. 23 of 1966) was pending in the court of the Civil Judge, Karwar, the court-fee Examiner during the course of inspection raised objection that the defendant who had filed the appeal should pay court-fee in respect of arecanut gardens under Section 7 (2) (d) of the Act. The learned Civil Judge upheld the objection of the court-fee Examiner and directed the defendant who was the appellant to pay court-fee according to the actual market value under Section 7 (2) (d) of the Act. Aggrieved by this order, the defendant preferred this revision petition. When the matter came up before Govinda Bhat, J. His Lordship referred the case to a Division Bench as he was of the view that the matter involved a substantial question of law.
2. There is no dispute that on the land in question areca nut trees are planted and it is also not in dispute that this land formed an entire estate paying annual revenue to Government at a rate settled but not permanently. Section 7 of the Act provides for the determination of the market value for purposes of paying court-fee and it reads as follows:--
'(1) Save as otherwise provided where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.
(2) The market value of land in suits falling under Section 24 (a), 24 (b), 26 (a), 27, 28, 29, 31, 35 (1), 39 or 45 shall be deemed to be-
(a) where the land forms an 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 Deputy Commissioner's register as separately assessed with such revenue, and such revenue is permanently settled -- twenty-five 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 -- twelve and half tunes 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, fifteen times the net profits if any from land during the year before the date of presenting the plaint or thirty times the revenue payable on the same extent of similar land in the neighour-hood, whichever is lower;
(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 a garden or the land is a house site whether assessed to full revenue or not, or is land not falling within the foregoing description -- the market value of the land.
Explanation:-- The word 'estate' as used in this section means any land subject to the payment of revenue, for which the proprietor or farmer or raiyat shall have executed a separate engagement or Government, or which in the absence of such engagement shall have been separately assessed with revenue.'
3. Sri T. S. Ramachandra, learned counsel appearing for the petitioner in this case contends that the lands in question admittedly fall under Section 7 (2) (b) and there is no justification to treat them as garden lands and levy court-fee under Clause (d). According to him the lands in question are not garden lands. In support of his contention he relied upon few decisions. The first decision he relied upon is one in Kullappa Goundan v. Abdul Rahim, (ILR 40 Mad 824) = (AIR 1918 Mad 805). In that case on the land in question there were coconut trees. The question was whether the land was a garden within the meaning of that expression under Section 7 of the Indian Court Fees Act (VII of 1870). It may be mentioned here that the scheme of that section and the present section is almost the same. Dealing with the question whether the land on which coconut trees were standing was garden, this is what Seshagiri Ayyar, J. said:
'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 the purpose of pleasure. The fact that the term 'garden' is coupled with the term 'house' shows 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 Stroud'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 from 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 one thing repugnant in the idea of calling a group of tamarind trees or illuppa 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.'
This dictum has been followed by the same High Court in the case Vayyapurivathiar v. Somianarayana, (AIR 1948 Mad 344). This view has been approved by the High Court of Jammu and Kashmir in Mumtaz Begum v. Aman Ullah Khan AIR 1964 J and K 34. In that case after reviewing a number of decisions and referring to the meaning of the word 'garden' in Section 7 of the Indian Court Fees Act. the learned Judges held that :
'The various definitions by which an attempt has been made to define the word 'garden' in the Court-Fees Act lead only to one conclusion that the word garden has to be interpreted in an English sense of the term and as has been remarked by Seshagiri Aiyar, J. the Court Fees Act was drafted by an English Lawyer and as such the connotation of garden that he had in mind was an appendage to a house or a place which was kept for purposes of pleasure.....'
'.........So it can very easily be said that the Legislature never intended to term that piece of land as a garden upon which trees, whether fruit trees or other kinds of trees stood, or which in popular language is called an orchard.'
We are in agreement with the view expressed by both the High Courts of Madras and Jammu & Kashmir.
4. Sri B. K. Ramachandra Rao, Additional Government Advocate, to whom notice was issued by the court to assist the court in deciding this question, strongly relied upon some of the decisions of the former High Court of Mysore in which it had been held that land with coconut trees or arecanut trees had been held as a garden within the meaning of that expression in Mysore Court-Fees Act which was in force then. In particular he referred to the decision in Seshagiri Rao v. Yerrappa, (1951) 29 Mys. LJ 137. In that case Justice Mallappa was dealing with a Honge grove and the question was whether that honge grove was to be considered as a garden for purpose of levy of court-fee. It is true that he followed the earlier decisions of the former High Court which had taken the view that the land with fruit bearing trees was a garden within the meaning of the Court Fees Act but ultimately came to the conclusion that the Honge Grove was not a garden. Mr. Ramachandra Rao also urged that since this was the view that was consistently taken by the former High Court of Mysore and that was prevalent in the Mysore Area of the New Mysore State, on the principle of Stare Decisis the view taken by the former High Court should not be departed from. The principle of Stare Decisis does not apply to the decisions of the former High Court of Mysore when they are in conflict with the decisions of the other High Courts which were exercising jurisdiction before Re-organization of States over other areas of the New State of Mysore, vide Basappa v. State. (1958) 36 Mys LJ 580 = (AIR 1959 Mys 1) (FB).
5. From the scheme of Section 7 of the Court-Fees Act, we are of the view that the land on which arecanut trees are standing cannot be considered as garden falling under Section 7 (2) (d) of the Act. The above decision can be supported on one other ground also. Admittedly the land falls under Section 7 (2) (b) of the Act as the same has been assessed but not on a permanent basis. That is because assessments made on land under Mysore Land Revenue Code or Mysore Land Revenue Act are liable to be revised periodically. If that is so, one has got to lean in favour of the person who pays court-fee rather in favour of the State and hold that the case falls under Section 7 (2) (b) of the Act which is more favourable to the litigant and not under Section 7 (2) (d) which appears to be more onerous.
6. Sri Ramachandra Rao lastly urged that Clause (d) has to be read as an exception to Clauses (a), (b) and (c) of Sub-Section (2) of Section 7 of the Act. We are unable to accept this argument.
7. For the reasons stated above, we allow this revision petition and set aside the order passed by the Court below. No costs.