1. The petitioner herein had originally brought a suit tor declaration of his right and possession of the suit schedule lands before the District Munsif, Kovvur, which was registered as O. S. No. 313 of 1955. The question of jurisdiction was raised having regard to the prevailing market-value of the suit lands. The District Munsif ultimately found on the basis of the Commissioner's report that the value of these lands at the time when the suit was brought was Rs. 10,500/-, and on that basis he returned the plaint to be presented before the proper Court. Accordingly, 01 19-6-1958, the petitioner herein instituted the suit by presenting the returned plaint before the Subordinate Judge, Eluru. By that time, the Andhra Court-fees and Suits Valuation Act, 1956 had come Into force with effect from 1-5-1956.
The question then before the learned Subordinate Judge was whether the old Court Fees 'Act had applied or the new Act. He came to the conclusion that the new Act has no application and that the old Court-fees Act had applied to the case whereunder, court-fee has to be computed on 15 times the net profits of the lands under Section 7 clause (v) (c) of the old court-fees Act. Since there was already a report of the Commissioner and further the order of the District Munsif based thereon, was confirmed by the appellate Court, the learned Subordinate Judge having regard to this report of the Commissioner came to the conclusion that the net profits were Rs. 158/- per acre and that 15 times net yield would come to Rs. 2380/- per acre, and he directed payment of Court-fee on that basis.
2. If it be held that the case is governed by the Andhra Court-lees and Suits Valuation Act, 1956, it admits of little doubt that under Section 24(a) for purposes of payment of Court-fee the market value of the property has to be computed and Court-fee has to be paid on 3/4ths of such market-value.
3. The plaintiff-petitioner has therefore called the order passed by the learned Subordinate Judge, in question on the ground that the new Court-fees Act, applied to the case having regard to the date of the institution of the suit before the Subordinate Judge, Eluru. The law is clear that even though the plaint might have been returned to be presented before the proper Court, it is only the date of the presentation of that plaint in the proper Court that would determine the question of Court-fee. In that behalf it would be Sufficient if I refer to the decisions in Bimala Prosad v. Lal Moni Devi, AIR 1926 Cal 355 and Ram Kishun Rai v. Ashirbad Rai, : AIR1950Pat473 .
4. The question then is, what should be the actual court-fee payable on this plaint. The learned Additional Second Government Pleader argues that inasmuch as the Court below had taken the net yield of the property into consideration and has capitalised it at 20 Years' purchase, as held in Lakshminarasimha Devaru v. Revenue Divisional Officer, Mangalore 1949-1-Mad LJ 283 : (AIR 1949 Mad 902) the court-fee directed to be part Is correct even according to the new Court-fees Act, for, It represents the 3/4ths of the market value of the lands in question. The ruling cited relates to the determination of compensation under Land Acquisition Act and does not relate to a question of Court-fee. It is no doubt true that the market-value of the lands can be ascertained in the absence of any other evidence, by capitalisation of net income at a certain number of year's purchase, but that method should be adopted only when there is no other better evidence available, That no such evidence is available could have been concluded only after giving opportunity to the parties concerned to produce their evidence.
It appears that the learned Subordinate Judge has not given any opportunity to the parties to lead their evidence in relation to the market value, in these circumstances, I cannot accept the argument that the Court-fee directed to be paid can be said to be the correct court-fee in the case. That Court-fee must have been determined only after giving opportunity to the parties under the new Court-fees Act. The parties may be able to produce evidence with regard to the contemporaneous sales of lands in the vicinity similarly circumstanced. They may produce even sale deeds of such lands, executed on or about the date of presentation of the plaint in the Subordinate Judge's Court. As a matter of fact, the petitioner has already produced one sale-deed. But it was left out of consideration probably on the assumption that the old Act had applied. In these circumstances, the order of the Court below is set aside. The learned Subordinate Judge will enquire into the matter and assess the court-fee in accordance with the provisions of Section 24(a) of the Andhra Court-fees and Suits Valuation Act, 1956.
5. The revision petition is allowed accordingly. Each party is directed to pay its own costs.