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Girdharlal Lavjibhai Vs. Bhogilal Girdharlal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 50 of 1980
Judge
Reported inAIR1981Guj139; (1981)0GLR37
ActsBombay Court-fees Act, 1959 - Sections 6
AppellantGirdharlal Lavjibhai
RespondentBhogilal Girdharlal and ors.
Appellant Advocate D.G. Karia, Adv.
Respondent Advocate A.J. Patel, Adv.
Cases ReferredRasiklal Nagori v. C. W. T.
Excerpt:
- - judging from the court fees inspector's report and the order passed by the learned joint civil judge, senior division rajkot, after hearing the advocate for the plaintiff, it is clear that the whole attempt on the part of the court fees inspector and the conclusion of the learned judge was on the footing that what matters for the purposes of the court-fees act in a case like this is the user of the land for agricultural purpose and not assessment to land revenue for the purpose of agriculture. that is the only test which is to be applied and the learned joint civil judge, senior division, rajkot failed to apply that test......act in a case like this is the user of the land for agricultural purpose and not assessment to land revenue for the purpose of agriculture. it is common ground before me that what the plaintiff is asking for is partition and possession of his one-fourth share of land. the judgment of the learned joint civil judge, senior division shows that in the revenue records in the village forms 7 and 12 the land was shown as fallow land so far as the actual use of the land for raising agricultural crops was concerned. however what weighed with the learned judge was that in the past this land was described as liquor distillery and that the suit land was given by the state of rajkot prior to integration of the state in 1947 for running a distillery. however, as i will point out in the course of.....
Judgment:
ORDER

1. The petitioner herein is the original plaintiff. Opponents Nos. 1 to 4 are the original defendants and the State of Gujarat, is the 5th opponent. The State of Gujarat is only added as a party in this civil revision application and the reason for joining the State as a party is obvious: the matter concerns the Court-fees Act and that is why the State of Gujarat has been joined as one of the opponents.

2. The plaintiff has filed the suit, being Special Civil Suit No. 8 of 1976 in the Court of the learned Civil Judge, Senior Division, Rajkot. The suit is for a declaration and partition of one-fourth share which the plaintiff claims in the suit land and he has Prayed that after ascertaining the one-fourth share of the land coming to his share the same should be handed over to him and possession should be given to him. In the suit acting under Section 12(3) of the Act, The Court Fees Inspector, the Inspection Officer made his report on July 12, 1976 requesting the Court that a provisional finding should be recorded that proper court-fee has not been paid by the plaintiff on the plaint and the Court should revise the valuation and determine that the amount of deficit court-fee stamp Rs. 2142/-. According to the Court Fees Inspector, court-fee payable on the plaint would come to Rs. 2220/- but only Rs, 58/- had been paid by the plaintiff at the time when he instituted the suit. Judging from the Court Fees Inspector's report and the order passed by the learned Joint Civil Judge, Senior Division Rajkot, after hearing the advocate for the plaintiff, it is clear that the whole attempt on the part of the Court Fees Inspector and the conclusion of the learned Judge was on the footing that what matters for the purposes of the Court-fees Act in a case like this is the user of the land for agricultural purpose and not assessment to land revenue for the purpose of agriculture. It is common ground before me that what the plaintiff is asking for is partition and possession of his one-fourth share of land. The judgment of the learned Joint Civil Judge, Senior Division shows that in the revenue records in the village Forms 7 and 12 the land was shown as fallow land so far as the actual use of the land for raising agricultural crops was concerned. However what weighed with the learned Judge was that in the past this land was described as liquor distillery and that the suit land was given by the State of Rajkot prior to integration of the State in 1947 for running a distillery. However, as I will point out in the course of this judgment, the question that is required to be considered is whether the land in question was assessed to land revenue for the purpose of agriculture.

3. The learned Joint Civil Judge, Senior Division accepted the contentions of the Court Fees Inspector and directed that the plaintiff should pay court-fees on the full market value of the suit land and the plaintiff should correct the valuation of the suit for the purpose of court fees to Rs. 38,700/- and pay court-fees accordingly.

4. Section 6 of the Bombay Court-fees Act provides for computation of fees payable in certain suits. The relevant portion of Section 6 provides as follows:

'The amount of fees payable under this Act in the suits next hereinafter mentioned shall be computed as follows:

x x x x x x (vii) In suits for partition and separate possession of a share of joint family property or of joint property, or to enforce a right to a share in any property on the ground that it is joint family property or joint property whether or not the plaintiff is in actual or constructive possession of the property of which he claims to be coparcener or co-owner - according to the value of the share in respect of which the suit is instituted.'

The Explanation to this clause provides:

'For the purposes of this paragraph, if the property in which a share is claimed consists of or includes any land assessed to land revenue for the purposes of agriculture the value of such land shall be deemed to be the value as determined under paragraph (v) of Section 6.' Under paragraph (v):

'In suits for the possession of land, houses and gardens according to the value of the subject-matter; and such where the garden -according to the market value of the house or gardens 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: '.

Under sub-clauses (b) and (c) of clause (v) :

'(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.'

I am not concerned with any permanent settlement in this case nor am I concerned with assumption of assessment. I am merely concerned with the land held on settlement for a period not exceeding thirty years. Under the Bombay Land Revenue Code all settlements are for a period of thirty years and 'Raiyatwari' settlement which is in force throughout the State of Gujarat is a settlement for a period not exceeding thirty years. Therefore, if in view of the Explanation to clause (vii) the land is assessed to land revenue for purposes of agriculture, by virtue of sub-clause (a) of clause (v) the valuation for the purposes of court-fee will be equal to twelve and a half times the assessment. In the case of land revenue the land can be assessed either for agricultural purposes or non-agricultural purposes and under the scheme of the Bombay Land Revenue Code, all lands which are not assessed for non-agricultural purposes are assessed to land revenue, for agricultural purposes. Therefore if the land in question is assessed to land revenue for purposes of agriculture, then the value would be twelve and a half times the assessment since sub-clause (a) of clause (v) would be applicable. It is obvious from the order of the learned Joint Civil Judge. Senior Division, Rajkot that in Village Forms Nos. 7 and 12 the land in question is being shown as fallow land. It is being shown that agricultural assessment is being assessed for agricultural Purposes in the case of this particular land and therefore valuation of the land would be on the basis of one-fourth share. That being the share which the plaintiff claims, of the value arrived at on the footing of assessment to land revenue for purposes of agriculture. I am not concerned in the instant case with land assessed to land revenue for purposes other than agriculture. It is clear from the language of clause (vii) and Explanation to clause (vii) that what the Legislature prescribes is the test of assessment to land revenue for a particular purpose and not the actual user of the land. The value of the land in the market is totally immaterial. As pointed out by this Court in the context of Wealth-tax Act in Commissioner of Income-tax V. Manilal Somnath, : [1977]106ITR917(Guj) the Potentiality for future non-agricultural purpose may affect the value of the land but so long as the land is not assessed to land revenue for purposes other than those of agriculture, it will still be land assessed to land revenue for purposes of agriculture and by virtue of the Explanation to clause (vii) read with sub-clause (a) of clause (v), it can only be the value for purposes of court fees at twelve and a half times the survey assessment. It must be borne in mind that the Court-fees Act is a financial statute and must be construed strictly and applying the rule of strict construction it must be held that in the instant case the valuation could not be more than a sum equal to twelve and a half times the assessment in the instant case to land revenue for purposes of agriculture. I am not do deciding in the instant case on the scanty materials placed before me as to what exactly the figure at twelve and a half times the assessment would be the trial Judge will have to satisfy himself what that figure is. The decision in Rasiklal Nagori v. C. W. T. AIR 1965 Guj 259 was explained by this Court in Commissioner of Income-tax v. Manilal Somnath, : [1977]106ITR917(Guj) but what is agricultural land for purposes of wealth-tax Act or Estate Duty Act or Income-tax Act is totally immaterial for the purposes of the Bombay Court Fees Act. All that counts is whether the land was assessed to land revenue for Purposes of agriculture. That is the only test which is to be applied and the learned Joint Civil Judge, Senior Division, Rajkot failed to apply that test. The test which he has applied is altogether wrong and altogether outside the language of the Bombay Court-fees Act Section 6, clause (vii) Explanation. Under these circumstances. the order of the learned Joint Civil Judge, Senior Division is set aside. This civil revision application is allowed and the Rule is made absolute. There will be no order as to costs of this civil revision application.

5. Application allowed.


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