(1) The suit property in Kucha Chellan, Delhi, is described as Dharamsala in the plaint and the question for determination in this petition for revision is whether in a suit for its possession court-fee is payable under Article 17(vi) or under section 7(v)(e) of the Court Fees Act.
(2) The suit was instituted by the Panchayat of Kucha Chellan purporting to be the managers of the Dharamsala on the allegation that the respondents had taken possession of it with the object of effecting repairs and described themselves as trustees. The possession not having been restored to the Panchayat within six months, this suit was brought under section 9 of the Specific Relief Act for its possession. An objection was taken that ad valorem court-fee ought to be paid in a suit of this nature, as under clause (v) of section 7 of the court Fees Act 'in suits for possession of land, houses and gardens' Court-fee is payable on the subject-matter of the property. The trial Court upheld this objection and directed the plaintiffs to put in an amended plaint. There was another preliminary objection which has been decided in favour of the plaintiffs and we are not concerned with it in these proceedings.
(3) The plaintiffs have come in revision to this Court and it has been argued by the learned counsel that the suit property is dedicated to God and a suit can be filed on a fixed Court-fee prescribed under clause (vi) of Article 17 of the II Schedule of the Court-Fees Act where it is provided that 'every other suit where it is not possible to estimate at a money-value the subject-matter in dispute......' a court-fee of Rs. 10/- is paid. This fee has now been raised to Rs. 19/-. It is also urged by the learned counsel that the property is custodia legis and for that reason also fixed court-fee is paid.
So far as the second contention is concerned, it may be disposed of first. In the plaint itself it is stated that the subject-matter of the suit was once in possession of the plaintiffs and the defendants had taken forcible possession of it and have now declined to part with it. There is no question of any custody of this property by the Court. Proceedings under section 145 are pending and the premises have been sealed. This cannot be construed to mean that the Court has taken possession of the property. Indeed, the plaint itself makes it clear that the plaintiffs are seeking to obtain possession of the suit property which, according to the allegations, has been wrongfully obtained by the defendants.
(4) As regards the other point raised by the learned counsel, it has been contended that the Dharmsala is a dedicated property and, therefore, its value cannot be determined. Reliance has been placed on two authorities. A Full Bench decision of the Rangoon High Court in U. Pyinnya v. U. Dipa, AIR 1929 Rang 134, related to a suit for possession of a property described as Phongyi Kyaung and its site and it was held that the property was dedicated in perpetuity to religion and therefore, could not command any marked value. The present case, however, is distinguishable because the property is not a temple and is not dedicated to any deity or idol. On the showing of the plaintiffs themselves, it is used as Dharmsala and cannot be equated with the type of property with which the Full Bench was dealing.
In another Full Bench decision of the Madras High Court in Rajagopala Naidu v. Ramasubramania Aiyar, AIR 1924 Mad 19, a temple likewise was the subject-matter and it was held that such a property has no market value for purposes of court-fees and a suit for its recovery, therefore, falls under Schedule II, Article 17(vi) and not under section 7(v)(e). On a parity of reasoning, this authority is also distinguishable from the instant case where a Dharamsala is the subject-matter of dispute.
Indeed there is a direct authority of the Madras High Court in Vayyapuri Vathiar v. Somianarayana Iyengar, AIR 1948 Mad 344, in which it was held by Satyanarayana Rao, J., that where the land is attached to the temple and is assessable to value, court-fee is payable under clause (v)(e) of section 7 of the Court Fees Act.
(5) A Dharamasala cannot be treated or described as a temple. It is in the last analysis a house for the living to live and not an abode of God. Even though its purpose may be charitable, its use cannot be regarded as religious. A Dharmsala is not dedicated to any godly purpose nor is any idol or deity installed therein. Sir Jai Lal, J., brought out this point of distinction in Mahant Hari Das v. Raja Ram, ('38) 40 Pun LR 113. It was observed by him that
'in a suit for possession of lands and buildings on the allegation that the plaintiff is the rightful Mahant of certain temple described in the plaint and that the property mentioned in the plaint was owned by the idol which was installed in that temple and for injunction restraining the defendant from interfering with the management of the plaintiff ad valorem court-fee has to be paid on the value of the properties subject to this proviso that where the properties are not capable of being valued owing to the character of the user to which they are put court-fee under Schedule II Article 17(vi) Court Fees Act is payable in respect thereof'.
From a perusal of the plaint it is manifest that the contest between the parties relates to the management of the Dharmsala, each claiming an exclusive right. Some indication has been given of the manner in which its valuation can be reached by the trial Court and in the main I am in agreement with him that the property is not immune from the payment of ad valorem court-fee under the provisions of Article 17. In this view of the matter, this petition fails and is dismissed with costs. The parties are directed to appear before the Subordinate Judge on the 3rd of January, 1962.
(6) Petition dismissed.