1. A Single Bench of this Court by order, dated 16-4-1971, has referred the question of Court-fees to a larger Bench in view of the conflict of opinion in some cases which presently we propose to mention.
2. This is a revision under Section 115 of the Code of Civil Procedure, which is directed against an order, dated 24-11-1970, passed by the Civil Judge, Class II, Balhar, in Civil Suit No. 21-A of 1968, holding that the question of court-fees is governed by Section 7(v)(c) of the Court-fees Act and, therefore, the trial Judge required the petitioner-plaintiff to pay court fees on fifteen times the mesne profits. The petitioner filed a suit for possession of two fields, namely, khasra Nos. 104/1 and 112, measuring 7.37 acres and 0.53 acres respectively and assessed to land revenue of Rs. 3/- and 0.50 paise respectively as annual land revenue. However, the petitioner claimed to pay court-fees under Section 7(v)(b) of the Court-fees Act on 20 times the assessed land revenue. That contention of the plaintiff was negatived by the trial Judge. Hence this revision by the plaintiff.
3. Before considering the instant question, it may be relevant to reproduce the two provisions relating to payment of court-fees, Section 7(v)(b) and Section 7(v)(c) are as follows:
'7 (v). In suits for the possession of land, houses.........--according to the valueof the subject-matter; and such value shall be deemed to be-
(b) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or where the land forms part of such estate and is recorded as aforesaid: and such revenue is settled, tout not permanently-
twenty times the revenue so payable.'
'7 (v). In suits for the possession ofland, houses...... --according to the valueof the subject-matter: and such value shall be deemed to be- (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 net profits have arisen from the land during the year next before the date of presenting the plaint-- fifteen times such net profits.'
At this stage, it is pertinent to note the phrases 'paving annual revenue' or 'pays no such revenue' occurring in the two sub-clauses. These two phrases have given a scope for controversy.
4. Prior to the year 1966, all lands were assessed to land revenue and land revenue was payable in respect of land and houses for agricultural purposes. However, with effect from 23-12-1966, M.P. Ordinance No. 19 of 1966 was enacted whereby Section 58-A was added to the M.P. Land Revenue Code, 1959. This Ordinance was subsequently replaced by the M.P. Land Revenue Code Amendment Act No. 20 of 1968 and the same remained in force till 30-6-1968. At that time Section 58-A of the Land Revenue Code, 1959, stood as follows:
'58-A. Certain land to be exempt from payment of land revenue; Notwithstanding anything contained in this Code, no land revenue shall be payable in respect of an uneconomic holding used exclusively for the purpose of agriculture.
Explanation.-- for the purposes of this section-
(a) uneconomic holding' shall mean a holding the extent of which does not exceed 7.5 acres and any holding the land revenue payable in respect whereof does not exceed five rupees;
(b) 'holding' shall mean the entire land held by a person in the State, notwithstanding the fact that any portion thereof is separately assessed to land revenue; and
(c) 'land revenue' shall not include moneys payable to the State Government for land by way of premium, rent, lease money in respect of land leased out for a period of less than five years, or quit-rent.'
5. The present suit was filed on 17-12-1968 and, therefore, it will be governed by the Court-fees Act and the M.P. Land Revenue Code, 1959, in force on that date. With effect from 1-7-1968, the M.P. Land Revenue Code Amendment Ordinance No. 10 of 1968 was amended which subsequently was replaced by the M.P. Land Revenue Code AmendmentAct No. 20 of 1968. The said Act remained in force till 12-6-1969. Section 58-A of the Land Revenue Code, 1959, as amended by the said Ordinance and the Act was as follows:
'58-A Lands exclusively used for the purpose of agriculture to be exempt from payment of land revenue.
Notwithstanding anything contained in this Code, no land revenue shall be payable in respect of any holding used exclusively for the purpose of agriculture with effect from 1st July, 1968:
Provided that nothing in this section shall affect the liability to pay land revenue which has become due for payment prior to the date aforesaid. Explanation.-- For the purposes of this section 'land revenue' shall not include moneys payable to the State Government for land by wav of premium, rent or lease money or quit rent.'
As already stated, this provision remained in force till 12-6-1969 and, thereafter with effect from 13-6-1969, the M.P. Land Revenue Code Amendment Ordinance No. 10 of 1969 was enacted which was later on replaced by the M.P. Land Revenue Code Amendment Act No. 5 of 1969. However in the present case, we are not concerned with the third set of amendment, but only with the second set of amendment mentioned above. For the period from 1-7-1968 to 13-6-1969 onwards there was no land revenue payable by any land in the entire State and all land revenue had been exempted. Therefore, we have to consider the position as to what court-fees would be payable in respect of land used for agricultural purposes during the said Period when there was total exemption of land revenue throughout the State.
6. It was urged by the learned counsel for the petitioner that exemption of land revenue should be construed to be a sort of permanent suspension and therefore, according to the learned counsel, although the liability for land revenue may be there, but persons holding land were exempted from payment of land revenue. We may observe that the argument is certainly very attractive which would need a serious consideration. But, hi our opinion, it is not merelv the assessment which would be material, but the words used in Sections 7(v)(b) and 7(v)(c) of the Court-fees Act are 'paying annual revenue to Government' or 'where the land pays no such revenue or has been partially exempted from such payment.' As such, section 7(v)(c) contemplates both cases of total exemption as also partial exemption of land revenue. For theapplicability of Section 7(v)(b) of the Court-fees Act, the land must be paving annual revenue to Government. The words show that it is the actual Payment of land revenue which would be material and not mere assessment to land revenue.
7. In this connection, we might advert to some cases where differing views have been expressed by Single Benches. In Gopi v. Anandilal C. R. No. 290 of 1969 D/- 10-8-1970 (Madh Pra--Indore B) decided by one of us, namely Tare J., a Single Bench of this Court expressed the opinion that even though Section 58-A of the M.P. Land Revenue Code, 1959, had been amended, the matter would still be governed by Section 7(v)(b) of the Court-fees Act. That opinion was expressed on the assumption that what would be material would be the assessment to land revenue and not the land revenue being payable or being paid. To the same effect was the opinion expressed by S. B. Sen. J. in Gorelal v. Mangilal C. R. No. 317 of 1969 D/- 17-10-1970 (Madh Pra -- Indore B). Later on Bhargava, J. expressed the same opinion in Nazir v. Poonra C.R. No. 488 of 1969 D/- 23-10-1970 (Madh Pra -- Indore B.). and Bhagirath v. Nanibai C. R. No. 173 of 1969 D/- 8-2-1971 (Madh Pra -- Indore B). In Manoharsingh v. Anarbai C. R. No. 26 of 1972 D/-25-1-1973 = 1973 MPLJ (Notes) 50 (Indore B.) A. P. Sen, J. also expressed an opinion to the same effect on the assumption that land revenue has been temporarily exempted. It may be that land revenue may have been temporarily exempted between 1-7-1968 to 12-6-1969. However, it was not so totally exempted between 23-12-1966 to 30-6-1968. nor is it totally exempted with effect from 13-6-1969 onwards. Even now land revenue is payable in respect of land, but what is exempted is land revenue in respect of uneconomic holding. It is only uneconomic holdings which are exempted from land revenue. Previously, an uneconomic holding meant a holding of less than 71/2 acres. Uneconomic holding means a holding which is less than 10 acres or the land revenue of which does not exceed five rupees. The word 'holding' has been separately defined by Section 58-A itself and, consequently, the definition of a holding as defined by Section 2(i) of the M.P. Land Revenue Code, 1959, will not be applicable to the word 'holding' used in Section 58-A of the Amendment Act. We may group all these cases mentioned above as A Group in which the opinion expressed is that the matter will be governed by Section 7(v)(b) of the Court-fees Act.
8. We may next refer to other cases. The case of Pusaram v. Himatrao,AIR 1943 Nag 315 decided by Puranik. J. was a case where the plaintiff filed a suit for partition and separate possession of his interest in an Izara village. He joined all the co-sharers of the village as party as he wanted partition and separate possession of his share. Such a suit, according to Puranik, J., would be governed by Section 7(v)(b) and not by Section 7(v)(c) of the Court-fees Act Indisputable the lands were assessed to land revenue. Puranik. J., laid down that in order that Section 7(v)(c) of the Court-fees Act might be attracted, it has to be established that the land has been exempted front land revenue either wholly or partially, or is charged with any fixed payment in lieu of such revenue. It is onlv then that Section 7(v)(c) of the Court-fees Act will be applicable; otherwise, in the opinion of Puranik, J. it will be Section 7(v)(b) of the Act which will be applicable. This case, in oar opinion, lays down the correct test for the applicability of the two provisions.
9. Later on, the matter came to be considered by V.R. Sen, J. in Sk. Gulam Hussain v. Abdul Jalil, C- R. No. 563 of 1948. D/- 14-10-1949 = 1950 Nag LJ (Notes) 97. In that case, a suit had been filed when there was no revocation of land revenue exemption under the C. P. and Berar Revocation of Land Revenue Exemption Act. The said Act was passed later on after the suit had been filed. If the suit has been filed after the said Act had been passed, V.R. Sen, J., was of opinion that it might be governed by Section 7(v)(b) of the Court-fees Act, but as the suit had been filed before the said Revocation of Land Revenue Exemption Act had been passed, the matter would be governed by Section 7(v)(c) of the Court-fees Act We may observe that we are in agreement with the view expressed by the learned Judge in the said case. Section 7(v)(c) of the Court-fees Act contemplates not only a case of partial exemption but also total exemption of land revenue, and, in our opinion, exemption from land revenue will not mean the same thing as suspension of land revenue. In a case of suspension of land revenue, the liability is there but merely recovery of land revenue is postponed to some future date. Section 144 of the M.P. Land Revenue Code, 1959, contemplates remission or suspension of land revenue on failure of crops. Suspension as per the said section as also as per Rule 6 framed under that section would merely mean postponement of the liability in respect of land revenue, while remission would mean wiping out the liability for any particular year, although it may be payable according to the assessment made. These cases of remission or suspension cannot be equated with cases of exemption which might be envisaged as per Section 58-A of the M.P. Land Revenue Code, 1959. We may bracket this case decided by V. R. Sen, J. in Group B. In that group, we may mention two other cases in which the same opinion has been expressed, namely, Jagannath Kurmi v. Purusharthi Co-op. Housing Society, C. R. No. 352 of 1969, D/- 29-10-1969 (Madh Pral wherein Pandey, J., has expressed the opinion that what is relevant is payment of land revenue and not mere assessment. To the same effect, Bhave. J. expressed the opinion in Mst. Chhitkibai v. Roopchand. C. R. No. 594 of 1971, D/-28-2-1972 (Madh Pra).
10. In our opinion, the view taken by the learned Judges in the cases mentioned in Group B would represent the correct view taking into consideration, the wordings of Section 7(v)(b) and Section 7(v)(c) of the. Court-fees Act read with Section 58-A of the M.P. Land Revenue Code, 1959 and, for that reason, we would approve of the view expressed in the cases mentioned in Group B and would disapprove of the view as expressed in the cases mentioned in Group A. For that reason, we would be inclined to overrule all those cases mentioned in Group A.
11. The result may rather be unfortunate. The object of the Legislature in enacting Section 58-A of the M.P. Land Revenue Code, 1959, was to give some relief to small cultivators who may have been cultivating uneconomic holdings. But the Legislature never contemplated that by giving that small relief to them in the matter, of exemption of land revenue, hardship might be caused to them in the matter of payment of Court-fees when such small uneconomic holders would be required to file suits for possession of lands which have been exempted from payment of land revenue. However, it is for the Legislature to rectify the matter by amending the Court-fees Act suitably. But we have no other course, left open except to hold that in respect of lands regarding which land revenue has been totally or partially exempted, the question of court-fees will be governed by Section 7(v)(c) and not by Section 7(v)(b) of the Court-fees. Act As a result we answer the reference accordingly and it is not necessary to send back the case to the Single Bench as nothing further is required to be done there. We, therefore, dismiss this revision and remit the case to the trial Judge to require the petitioner to pay court-fees under Section 7(v)(c) of the Court-fees Act. As the matter was debatable, the trial Judge shall give sufficient time to the petitioner to pay the requisite court-fees. However, in the circumstances, although we dismiss the present revision, we direct that there shall be no order as to costs of this Court which shall be borne as incurred.