1. The first claimant in O. P. No. 140 of 1965 on the file of the Court of the Subordinate Judge of Tiruchirappalli which arose out of a reference made under Sections 30 and 31(2) of the Land Acquisition Act, 1894 (1 of 1894) hereinafter referred to as the Act, is the appellant herein. An extent of 44 acres and 35 cents in S.F. Nos. 1/5-B and 1/6 in K. Sathanur village was acquired by the Revenue Divisional Officer. Tiruchirappalli, for construction of a Central Godown at Tiruchirappalli for the storage of foodgrains. By an award dated 24th April 1965, the Collector awarded compensation at the rate of Rs. 1,600/- per acre and the total amount of compensation inclusive of the statutory solatium and interest from the date of taking possession came to Rs. 97.977.94. As the lands acquired stood registered in the names of Peerdhan Jusarmal Salt, the father of the appellant herein, the fourth Respondent herein (the fourth claimant) and the fifth Respondent herein (the fifth claimant), the Collector referred the matter to the Court under Section 30 of the Act for apportionment of the compensation among the persons interested and deposited the amount into the Court. The appellant herein filed a claim statement through his Advocate on 11-11-1965 to the effect that he was entitled to 10 acres out of 22 acres and 34 cents acquired in S. F. No. 1/5-B inclusive of the well portion and that therefore the compensation amount for that portion should be paid to him. He filed I.A. No. 218 of 1966 on 16-7-1966 for permitting him to file an additional claim statement, the effect of the same being to substitute the new statement for the earlier claim statement filed by him through the Advocate.
In the additional claim statement sought to be filed, his case was that the entire required land continued to be in his possession and the Court auction purchaser Javalakshmi Ammal never took possession of the said extent either through Court or personally. Therefore according to the appellant, she had no right or title to the said extent of lands and the settlement deeds executed by her in favour of claimants 2 and 3 (respondents 2 and 3 herein) were not of any effect and the settlees themselves were never in possession and therefore the entire compensation in Court deposit should be paid over to him. Respondents 2 and 3, who are claimants 2 and 3, by their power of attorney agent. Javalakshmi Ammal, who is their mother, filed a claim statement wherein they stated that their mother Javalakshmi Ammal purchased 91 acres of land in Sathanur village inclusive of the lands acquired, in Court auction in 1951, that the sale was confirmed in her favour on 21-7-1952 by this Court in O.S.A. Nos. 143 and 144 of 1952 and that the sale certificate. Ex. B-8 was issued to Javalakshmi Ammal on 18-8-1952 It was further stated that out of the said 91' acres purchased by Javalakshmi Ammal, she settled 76-77 acres on her three sons and sold 4 acres 91 cents to the fourth respondent herein (the fourth claimant) on 23-4-1956. Therefore, according to Respondents 2 and 3, out of the lands acquired, barring 4-91 acres sold by Javalakshmi Ammal to the fourth Respondent herein the rest belonged to them and therefore they were entitled to the compensation amount referable to the said extent. The fourth respondent in his claim statement had stated that on 23-4-1956 he had purchased 4-91 acres out of the lands acquired by the Government and therefore he should be paid compensation for that extent.
The fifth respondent stated that he was an unnecessary party to the proceedings and the respondents 2,3 and 4 alone were entitled to the amount with reference to their respective shares. The learned Principal Subordinate Judge disposed of the original petition on 12-12-1966. He dismissed I.A. No. 218 of 1966 filed by the appellant herein. With regard to the claims of the appellant and respondents 2 to 4, the learned Principal Subordinate Judge came to the conclusion that Javalakshmi Ammal the Court auction purchaser took possession of the properties and therefore she had title to the acquired lands and that consequently she was competent to sell 4-91 acres to the fourth respondent herein and settle the balance on her sons, namely, respondents 2 and 3 herein. In the result, he apportioned the compensation amongst respondents 2 to 4 by directing payment of Rs. 88,823-49 less process charges to respondents 2 and 3 herein and Bs. 9,154.15 less process charges to the fourth respondent herein, it is against this order of the learned Principal Subordinate Judge that the present appeal has been preferred by the first claimant in the said original petition.
2. We may immediately make two positions clear. The first is, the learned counsel for the appellant argued the appeal solely with reference to the judgment of the learned Principal Sub-ordinate Judge and not a scrap of Paper has been prepared and filed before the Court for the conduct of this appeal and the learned counsel himself did not invite our attention to any other record except the judgment appealed against. The second is, though one of the grounds in the grounds of appeal has canvassed the correctness of the order of the learned Principal Subordinate Judge dismissing I.A. No. 218 of 1966 preferred by the appellant herein, for substituting a new claim statement in the place of the claim statement filed by him on 11-11-1965. absolutely no argument was advanced before us with reference to the said order of dismissal passed by the learned Principal Subordinate Judge. Even with regard to the claim of the appellant based on the claim statement preferred by him on 11-11-1965. the learned counsel merely took us through the order of the learned Principal Subordinate Judge.
3. From the order it appears that the claim put forward by the appellant was that though Javalakshmi Ammal, the
predecessor-in-interest of respondents 2 to 4 purchased the entire acquired lands among others in court-auction, in execution of a decree against the father of the appellant herein, she did not take possession of the land so Purchased either personally or through Court and that the judgment-debtor and the appellant continued to remain in possession of the same for over the statutory period and that consequently they had perfected title to the lands by adverse possession. The learned Principal Subordinate Judge considered this question and negatived the claim of the appellant.
4. We may immediately mention that the appellant having put forward a claim of title by adverse possession, the burden was exclusively on him to make out that claim, The appellant as P.W. 3 gave evidence to the effect that all these years the cattle owned by Pinirapole Society (Society giving protection to disabled cows) were being grazed in the property sold in Court-auction. The said society is admittedly a public limited one and P.W. 3 has no connection with it. However. P.W. 3 stated that the property sold in court-auction belonged to Joharmal Sowear and Sons of which he was a managing partner. As rightly pointed out by the learned Principal Subordinate Judge, the said firm was not claiming the compensation amount and it was the appellant who in his individual capacity was claiming the compensation amount. Consequently we agree with the conclusion of the learned Principal Subordinate Judge that there was neither pleading nor satisfactory evidence to show that P. W. 3 either individually or as the managing partner of Joharmal Sowcar and Sons was in possession of the properties after the court-auction sale for over the statutory period of 12 years and thereby acquired title to the same by adverse possession.
5-6. On the other hand there is positive evidence to show that the court-auction purchaser took possession of the properties and was in possession of the same. (After considering the evidence his Lordship proceeded:)
Hence, apart from there being no evidence whatever on the side of the appellant to show that notwithstanding the Court auction sale, his father and he continued to remain in possession of the properties in question, there is positive evidence to establish that Javalakshmi Ammal took possession of the properties pursuant to the court-auction sale and was in enjoyment thereof. We, therefore, agree with the conclusion of the learned principal Subordinate Judge that the appellant miserably failed to make out his case of title to the acquired properties by adverse (possession.
7. As we have pointed out already, the sale of 4 acres 91 cents by Javalakshmi Ammal to the fourth respondent herein was admitted by Respondents 2 and 3 themselves and consequently the apportionment of the compensation as between them need not be considered in this appeal.
8. Hence, there are no merits in this appeal and the same is liable to be dismissed.
9. After the hearing of the appeal wag over and we were about to dictate our judgment, we noticed that the memorandum of appeal in this case bore a court-fee of Rs. 200.50 only. We felt that the proper court-fee had not been paid on the memorandum of appeal and therefore we asked the learned counsel for the appellant to convince us that the proper court-fee had been paid on the said memorandum of appeal: and we save time for that purpose. When the matter came up before us again on 28-6-1973, we directed notice to the Government through the Government Pleader and posted the matter to 2-7-1973. On that day, the learned Additional Government Pleader appeared for the Government and we heard the counsel for the parties on the question of proper court-fee payable on the memorandum of appeal. When the appeal was presented to this Court, the office appears to have returned the memorandum of appeal for payment of proper court-fee and the appellant's counsel took up the stand that the appeal had to be valued under Section 25 (d) of the Madras Court-fees and Suits Valuation Act. Madras Act 1'5 of 1955. hereinafter referred to as the Madras Act. The learned counsel further took up the stand, that in any event the case might at best be covered by Section 50 of the Madras Act, as a suit not otherwise provided for and filed in the Sub-Court and a fixed court-fee of Rs. 200/- was payable. That is how the court-fee of Rs. 200.50 has been paid on the memorandum of appeal, even though the memorandum of appeal has stated that the value of the subject-matter of the appeal is. "the amount deposited in the lower Court against which declaration is sought for, namely Rs. 97.977.94". It further stated that "court-fee paid under Section 50 (iii) of the Madras Act-Rs. 200-50". Even before us, the learned counsel for the appellant contended that the memorandum of appeal was to 'be valued either under Section 25 (d) or under Section 50 of the Madras Act. On the other hand, the learned Additional Government Pleader contended that the appeal has to be valued and the court-fee has to be paid ad valorem. We shall now consider the question as to the proper court-fee payable on the memorandum of appeal. We may immediately mention that the learned counsel for the appellant did not challenge our jurisdiction to go into the correctness of the court-fee payable on the memorandum of appeal at this stage.
10. The contention of the question as to the correct court-fee payable on the memorandum of appeal requires reference to the relevant provisions of the Land Acquisition Act itself. Section 11 of the Act deals with the enquiry to be made by the Collector and the award to be passed by him. This section states that the Collector shall make an award under his hand stating the following three matters: (i) the true area of the land: (ii) the compensation which in his opinion should be allowed for the land: and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him. According to Section 12, such an award shall be filed in the Collector's Office. Section 18 provides for reference to Court. As per thig section, any person interested who has not accepted the award, may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. Section 19 requires the Collector to make the reference giving the necessary particulars, if the demand for reference was made within the time prescribed. Section 26(1) stated that every award under this part shall be in writing signed by the Judge, and shall specify the amount awarded together with the grounds for awarding the said amount. Sub-section (2) of this Section which was introduced by the Amendment Act passed in 1921 provided:
"Every such award shall be deemed to be a decree and the statement of the grounds of every such award a Judgment within the meaning of Section 2, Clause (2) and Section 2 Clause (9) respectively of the Code of Civil Procedure. 1908 (V of 1908)."
Sections 18 to 28 are found in Part III of the Act. Part IV consists of only two sections, namely Sections 29 and 30. Section 29 provides that where there are several persons interested, if such persona agree in the apportionment of the compensation the particulars of such apportionment shall be specified in the award and as between such persons the award shall be conclusive evidence of the correctness of the apportionment. Section 30 provides that when the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same or any Part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court. Sections 31 to 34 find place in Part V, Section 31 (11 states that on makine an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section. Sub-section (21 of Section 31 states:
"(2) If they shall not consent to receive it or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under Section 18 would be submitted:
Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount: Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18;
Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto."
Sections 32, 33 and 34 deal with investment of money deposited in respect of lands belonging to persons incompetent to alienate, investment of money deposited in other cases 'and payment of interest. The only other sections in the Act which require notice are Sections 53 and 54. Section 53 states that save in so far as they may be inconsistent with anything contained in this Act, the provisions-of the Code of Civil Procedure (XIV of 1892) shall apply to all proceedings before the Court under this Act. Section 54 is as follows:
"54. Subject to the provisions of the Code of Civil Procedure. 1908 (V of 1908) applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the 'provisions contained in Section 110 of the Code of Civil Procedure. 1908 (V of 1908) and in Order XLV thereof."
With reference to the above provisions, we may point out that though the Act itself has not defined the word "award", the said word has been used not only with reference to the order that the Collector passes under Section 11, but also with reference to the order of the Court cased on reference made to it under Section 1. Further, Sub-section (2) of Section 26 makes it clear that an award passed by the Court only under Part III of the Act, namely, on a reference made to it under Section 18 of the Act shall be deemed to be a decree and the statement of grounds of every such award shall be deemed to be a judgment within the meaning of Section 2, Clause (2) and Section 2, Clause (9) respectively of the Code of Civil Procedure. Consequently, an order passed by a Court on a reference made under Sections 30 and 31(2) of the Act is not designated as an award by the Act and even otherwise an order passed by a Court on a reference made under Section 30 occurring in Part IV and Section 31(2) occurring in Part V will not be governed by Section 26 which occurs in Part III and expressly refers to an award in that part and consequently cannot be deemed to be a decree and the statement of grounds of such an order cannot be deemed to be a judgment within the meaning of Section 2, Clause (2) and Section 2, Clause (91 respectively of the Code of Civil Procedure. 1908. Hence Section 54 of the Act providing for an appeal from an award or from any part of the award cannot apply to an order passed by a Court on a reference under Sections 30 and 31(2), since such an order has not been designated as an award by the Act. Therefore, the question that arises for consideration is, under what provision of law, an appeal is available against an order made by the Court on a reference under Sections 30 and 31(2) of the Act.
11. That question has been considered by a Bench of this Court in A. Mahalinga Kudumban v. Theetharappa Mudaliar, 56 Mad LJ 387 = (AIR 1929 Mad 223). The Bench pointed out that the decision of a Court as to the rights of the contending parties on a reference under Section 30 of the Act cannot be said to be an award and therefore Section 54 is not applicable to such a case. However, the Bench proceeded to hold, on general principles, that an appeal would be available. The Bench rested its- conclusion on two alternative grounds. One was. though Section 26(2) of the Act itself would not apply to an order passed by a Court on a reference under Sections 30 and 31(2) of the Act, still such an order would be a decree within the meaning of Section 2 (21 of the Code of Civil Procedure. The second was. apart from the question whether such an order amounts to a decree or not. when proceedings are before a Civil Court, such proceedings are governed by the usual procedure applicable to such Court and as the reference under Section 30 is to the Court, the right of appeal given by Section 96. Code of Civil Procedure unless expressly taken away would attach to such proceedings and Section 53 which makes the Code of Civil Procedure applicable to proceedings before the Court does not take away the right under the Code of Civil Procedure. The above Bench decision was followed by another Bench of this Court in Janapareddi Venkatareddi v. Janapareddi Adhinaravana Rao, 56 Mad LJ 357 = ILR 52 Mad 142 = (AIR 1929 Mad 351). Though the reasoning of the Bench in 56 Mad LJ 387 = (AIR 1929 Mad 2231 was dissented from by a Full Bench of this Court in N.K.R. M. Rajagopala Chettiar v. The Hindu Religious Endowments Board, Madras. ILR 57 Mad 271 = (AIR 1934 Mad 103 (211 (FB) the correctness of the said reasoning and conclusion of the Bench was restored by a subsequent Full Bench of this Court in Chikkanna Chettiar v. V.S. Perumal Chettiar. ILR (19401 Mad 791 -(AIR 1940 Mad 474) (FB). In view of the above decisions, it is unnecessary to consider the decisions of other Court bearing on this point.
12. The next Question for consideration is what exactly is the court-fee payable on the memorandum of appeal, in cases where an appeal is preferred against an order of Court made on a reference under Sections 30 and 31(2) of the Act. The decision referred to above, namely 56 Mad LJ 387 = (AIR 1929 Mad 223) deals with this question as well. That decision dealt with the Court-fees Art. 1870. namely the Central Act 7 of 1870 hereinafter referred to as the Central Act. It held :
"Section 8 cannot apply to this case as this is not an appeal against an award. Section 8 refers specifically to the amount awarded to and the amount claimed by the appellant. There is no dispute here as regards the amount of compensation awarded. Section 8 can only apply to cases where the claimant claims more than the amount awarded by the Lower Court. If Section 8 is not applicable, the only other provision of the Court-fees Act applicable to a case like this is Article 1 of the first schedule, namely. Plaint or Memorandum of Appeal (not otherwise provided for in this Act). There is no specific provision as regards appeals in such cases as these and therefore the court-fee payable is the ad valorem fee. It has been the practice of this Court to demand ad valorem fee in appeals under the Land Acouisition Act and the practice is the same in the Allahabad High Court as is clear from Sheo Rattan Rai v. Mohri. (1899) ILR 21 All 354. See also Smt. Trinavani Dasi v. Krishna Lal De, (19121 ILR 39 Cal 906." The view taken by the above decision was followed by another Bench of this Court in Chintakayala Thammayya Naidu v. Chintakavala Venkataramanamma. 62 Mad LJ 541 = ILR 55 Mad 641 = (AIR 1932 Mad 4381 and that case dealt with an application for refund of court-fee said to have been paid in excess of the requirement on the memorandum of appeal. On a reference by the Land Acquisition Officer made under Section 18 of the Act, the District Judge held that the claimant who was a widow was entitled to a life interest in the compensation money awarded for the melwaram, but on account of the limited interest held by this widow, he ordered under Section 32 of the Act the money to be invested in the Imperial Bank. The petitioner therein, who was the second claimant appealed claiming that the compensation was payable to him alone. He paid a court-fee, ad valorem of Rupees 2.332-7-9 on the amount of the award. But the petitioner, by the petition in question, claimed that the proper court-fee was at for a mere declaration and that Rs. 500/- would have been sufficient and therefore claimed a refund of the difference. This Court held :
"It cannot 'be doubted that as a general Principle where a successful claimant before the District Judge is declared entitled to immediate payment, the appeal against such an order would be an appeal praying for the recovery of the money from the successful claimant and would have to be valued ad valorem as a claim for money".
They relied on the decision in A. Mahalinga Kudumban v. Theetharapna Mudaliar, 56 Mad LJ 387 = (AIR 1929 Mad 223) in support of their conclusion. But they held that the particular case before them would not fall within the general principle because:
"The widow never got possession and never could set 'Possession of the principal amount. The possession and control of it lies with the District Court and the property is in custodia legis." They also pointed out that if any interest on the principal had been paid out to the widow, the petitioner if he sought to recover that also, would have to pay court-fee ad valorem on that, but that question did not arise before them. In this view they held that in that particular case ad valorem court-fee was not payable. No other decision of this Court bearing on this point was brought to our notice.
13. But decisions of certain other High Courts were brought to our notice. In Muhammad Suleman v. Ghamandi Lal, AIR 1931 Lah 343. a single Judge of the Lahore High Court took the view that in an appeal by co-sharer from an order directing compensation to be made to certain persons for a share in the compensation amount, ad valorem fee was to be paid on the amount of compensation claimed in the appeal.
14. In re Ananda Lal Chakrabutty. AIR 1932 Cal 346 = (ILR 59 Cal 528) is a decision of Rankin. C.J. on a reference made under the Court-fees Act. That also was a case of apportionment of compensation amount. The learned Chief Justice came to the conclusion that it was ad valorem court-fee that was payable on a memorandum of appeal against a decision of apportionment of compensation. However, the learned Chief Justice held that it was Section 8 read with Article ) of the first schedule of the Central Act that would apply. The learned Chief Justice further held that it was Article 1 of the first schedule that out a charge upon a Plaint or memorandum of appeal not otherwise provided for in the Central Act and the purpose of Section 8 was to say that when you come to make a charge under Article 1. Schedule l. the figure which is to be taken as the appropriate figure under column 2 is the figure to be computed by finding out the difference between the amount awarded to the appellant and the amount claimed by him. The learned Chief Justice observed :-
"It is clear enough that Section 8 necessarily involves that there is an ad valorem charge laid down either under Section 4 or under Section 6 and contained in Schedule l...............The object of Section 8 is not to impose an ad valorem charge; it assumes that that has already been done...............
Section 8 says that he is only to be charged upon the further amount that he is claiming by the appeal, that is the amount of money which he says should be awarded to him in his own individual case in excess of the amount which in fact has been awarded. The business of the section is not therefore to impose an ad valorem charge but on the assumption that the Act has already made an ad valorem charge to say that it is to be charged upon him in that particular wav ...............Nevertheless the section has to be taken into account when one is construing the Act as a whole and on the face of that section, I have no doubt at all that an ad valorem fee is chargeable under Article 1. Schedule 1. Court-fees Act."
For the purpose of understanding this conclusion of the learned Chief Justice, it is necessary to refer to the relevant provisions of the Central Act.
15. Section 4 of that Act provided that no document of any kinds specified in the first or second schedule to the Act annexed, as chargeable with fees, shall be filed, exhibited or recorded in or shall be received or furnished by any of the said High Courts in any case coming before such Court in the exercise of its jurisdiction referred to therein, unless in respect of such documents there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document. Section 6 stated that except in the Courts already mentioned no document of any of the kinds specified as chargeable in the first or second schedule to the Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document. Section 7 dealt with the computation of fees payable in enumerated suits. Section 8 provided:
"The amount of fee payable under this Act on a memorandum of appeal against an order relating to compensation under any act for the time being in force for the acquisition of land for public purposes shall be computed according to the difference between the amount awarded and the amount claimed by the appellant."
The document coming within the scope of Article 1, Schedule 1 dealing with ad valorem court-fees is as follows:-
"Plaint or written statement, pleading a set-off or counter-claim or memorandum of appeal (not otherwise provided for in this Act) presented to any Civil or Revenue Court except those mentioned in Section 3."
With reference to these provisions, the reasoning of the learned Chief Justice was that Section 8 itself was not a charging section that it was Section 4 or Section 6 read with Article 1. Schedule I which imposed a charge and that Section 8 merely dealt with the computation of fee payable on the memorandum of appeal in the particular case. However, what is to be noted for the present purpose is that the learned Chief Justice held that on the basis of Section 8 read with Article 1. Schedule 1 of the Central Act, it was the ad valorem court-fee that was payable on a memorandum of appeal.
16. We have already referred to the decision of this Court in 56 Mad LJ 387 = (AIR 1929 Mad 223) holding that Section 8 can apply only to a case where the quantum of compensation is in dispute and it does not apply to a case where an appeal is preferred against the order apportioning the amount of compensation fixed by the Collector. However, the learned Chief Justice in AIR 1932 Cal 346 = (ILR 59 Cal 528) took a different view. The learned Chief Justice pointed out:
"The section dealing with the amount of fee payable makes a comparison between two things - the amount awarded and the amount claimed by the appellant. It appears to be reasonably clear that the comparison can only be between the amount awarded to the appellant and the amount claimed by the appellant. There can be no comparison between the amount awarded to a number of persons and the amount claimed by one individual representing his individual interest." In view of the learned Chief Justice, what is relevant is. what was claimed by the particular individual and what was awarded to him and not what was awarded by way of compensation for the acquired land as such.
17. A single Judge of Patna High Court in Braia Kewat v. Madanlal Agarwal. AIR 1951 Pat 608 held that it was Article 1 of Schedule 1 of the Central Act that applied to such appeals and therefore ad valorem court-fee was payable. The learned Judge pointed out:
"According to the claim of the appellant, they are entitled to the entire amount of compensation awarded. According to the decision, which they challenge and are trying to set aside, they are entitled to nothing. Hence the value of the appeal is the entire amount of the compensation awarded."
18. The Judicial Commissioner of Himachal Pradesh had to consider this question in Smt. Vindhva Basani v Jadab Singh, . He
referred to the various decisions of the High Courts and agreed with the reasoning and conclusion of Rankin. C.J. in AIR 1932 Cal 346 - (ILR 59 Cal 528) and held that it was Section 8 read with Article 1. Schedule 1 of the Central Act that would applv and therefore ad valorem court-fee was to be paid on a memorandum of appeal.
19. Rash Behari Sanval v Gosto Behari Goswami, AIR 193s Cal 243 = (ILR 62 Cal 331) is a decision of a single Judge (Costello, J.) of the Calcutta High Court. In that case the contest was between an alienee from a Hindu widow and the reversioners of her husband, in respect of compensation awarded for acquiring the property of the husband, the latter con tending that the alienation was not justified by necessity and therefore the compensation should be invested under Section 32 of the Act so that the same might be available to them on the death of the widow. The President of the Calcutta Improvement Tribunal having held that the sale was for legal necessity and therefore the purchaser had acquired absolute interest in the property and was entitled to the entire compensation. The reversioners preferred an appeal. The question arose as to the amount of court-fee payable on the said appeal. The learned Judge (Costello, J. ) held:
"It is quite clear, in my opinion that the dispute between the Sanvals and Gosto Behari Goswami cannot in any case be properly said to be considered with the amount of compensation payable by reason of the compulsory acquisition of the property owned by Bhuban Mohini. (the widow). The Sanvals in the proceedings before the President of the Improvement Tribunal were really asking for a declaration and some consequential relief, namely that the money should be invested instead of being handed over to Goswami. In that view of the matter this would seem to be one of that unsatisfactory class of cases, which fall within the provisions of Section 7. Sub-section 4 (c) where the amount of fee payable is more or less left to the discretion of the plaintiff himself, in that the section provides that in suits brought to obtain a declaratory decree or order, where consequential relief is prayed, the plaintiff shall state the amount at which he values the relief sought."
This judgment did not refer to the decision of Rankin, C.J. in AIR 1932 Cal 346 referred to already.
20. Another single Judge (Bijayesh Mukherji J.) of the Calcutta High Court had to consider this question in Kali Gopal Chatterjee v. T. Baneriee. . He elaborately considered all the prior
decisions and agreed with the view of Rankin. C. J. expressed in AIR 1932 Cal 346 = (ILR 59 Cal 528). The learned Judge also reconciled the decision of Costello. J., in AIR 1935 Cal 243 = (ILR 62 Cal 331") with that of Rankin, C.J. in AIR 1932 Cal 346 - (ILR 59 Cal 528) by pointing out that the decision of Cos-tello. J. in AIR 1935 Cal 243 = (ILR 62 Cal 331) fell within the exception to the general principle recognised by this Court in 62 Mad LJ 541 = ILR 55 Mad 641 = (AIR 1932 Mad 438). In the result, the learned Judge held that it was ad valorem court-fee that was payable on the memorandum of appeal under Section 8 read with Article 1, Schedule 1 of the Central Act. The learned Judge also held that an appeal against an order of apportionment would come within the scone of Section 8.
21. The only decision which has taken a view different from the view taken by all the above decisions, namely that it is the ad valorem court-fee that is payable on a memorandum of appeal against an order of apportionment is that of the High Court of Ralasthan in Hakim Martin De Silva v. Martin De Silva. . The Court held that the
court-fee payable was a fixed court-fee under Schedule II. Article 17(iii) of the Central Act on the basis of the relief being one for a declaration. The learned Judges observed:
"What is in dispute in the present appeal is the relative shares of the parties in the house property in dispute. The appellant wants a declaration that he alone was the owner of the property which had been acquired. The apportionment will follow the declaration as a matter of course. The money is still in the hands of the Court, and his purpose would be fully served by a mere declaration of his right, title, or interest in the property which has been acquired."
This decision was noticed and not followed by the Judicial Commissioner, Himachal Pradesh in referred to already and by Biiavesh Mukherji, J. in .
22. The decision of the High Court of Delhi in Mangal Sen v. Union of India, is not of any assistance, because that case
dealt with the acquisition of land under the Resettlement of Displaced Persons (Land Acquisition Act, 1948), which constituted a totally different scheme.
23. If the matters have stood there, we are bound to follow the decisions of this Court in 56 Mad LJ 387 = (AIR 1929 Mad 223) and 62 Mad LJ 541 = ILR 55 Mad 641 = (AIR 1932 Mad 438) and hold that ad valorem court-fee is payable on the memorandum of appeal in the present case. However, the Madras Act has replaced the Central Act as far as this State is concerned, except with regard to fees and stamps relating to documents presented or to be presented before an officer serving under the Central Government. Therefore, the question for consideration is whether this has made any difference.
24. In our opinion though the provisions contained in the Madras Act are more elaborate and detailed, they do not make any difference with regard to the present position. Section 51 of the Act corresponds to Section 8 of the Central Act. This section provides:
"The fee payable under this Act on a memorandum of appeal against an order relating to compensation under any Act for the time being in force for the acquisition of property for public purposes shall be computed on the difference between the amount awarded and the amount claimed by the appellant."
Except for the use of the word 'property' in this section in the place of the word, 'land' in Section 8 of the Central Act and for two verbal changes, this section does not materially differ from Section 8 of the Central Act. The document mentioned in Article 1, Schedule 1 dealing with ad valorem fees in the Madras Act is "plaint or written statement pleading a set off or counter-claim or memorandum of appeal presented to any Court". Here again except for the omission of the expression 'not otherwise provided for' in this Act occurring in the Central Act and for the use of 'any Court' in the place of 'any Civil or Revenue Court except those mentioned in Section 3 occurring in the Central Act, there is no material change between the two provisions. We are of the opinion that the omission of the expression 'not otherwise provided for' in this Act in the Madras Act does not alter the position at all, because even if the said expression is present in the Madras Act the result will be the same.
25. Section 21 occurring in, Chapter IV of the Madras Act states that the fee payable under this Act shall be determined or computed, in accordance with the provisions of this chapter. Chapter VI, Chapter VIII and Schedules I and II. Consequently we shall have to see whether the present case falls within the scope of any of the provisions contained in Chapter IV. Chapter VI, Chapter VIII and Schedules I and II. The learned counsel for the Appellant relied on only two sections in the Madras Act, namely. Sections 24 and 50 as relevant in this context. Section 25 deals with suits for declaration and Section 50 deals with suits not otherwise provided for. In our opinion, neither of these provisions will apply to the present case. In the first place, the proceedings before the lower Court, on a reference made under Sections 30 and 31(2) of the Act cannot be treated as a suit, as contemplated by the Madras Act. As a matter of fact, the Court acquires iurisdiction to deal with the matter only on a reference made by the Collector under the Act and therefore such a proceeding cannot be equated with a suit, even though the order passed by the Court may be considered to be a decree, having regard to fact that it decides the civil rights of Parties. On the other hand when the matter comes before the appellate Court, on an appeal against the order of the lower Court apportioning the compensation, the principle applicable is as enunciated by this Court in Chintakayala Thammavva Naidu v. Chintakayala Venkataramanamma, 62 Mad LJ 541 = ILR 55 Mad 641 = (AIR 1&32 Mad 436) already referred to namely, where a successful claimant before the District Judge is declared entitled to immediate payment, the appeal against such an order would be an appeal pravins for the recovery of the money from the successful claimant. Therefore, the appeal is In the nature of a claim to recover the money from the respondents in whose favour the order has been made by the lower Court and therefore the appeal has to be valued for the amount so claimed and the court-fee has to be paid ad valorem on the said amount.
26. Secondly. Sections 25 and 50 as such apply only to suits and not to appeals. The section applicable to appeals is Section 52, which, omitting the proviso and explanations, which are not relevant for this appeal is as follows:-
"The fee payable in appeal shall be the same as the fee that would be Payable in the Court of first instance on the subject-matter of the appeal."
As we pointed out already, the subject-matter of the appeal is the right of the appellant to recover the amount of the entire compensation from the successful claimants, namely, respondents 2 to 4 herein. It is indisputable that on such a subject-matter in the Court of first instance, the fee payable would be ad valorem on the amount of compensation. On the other hand, instead of considering such a notional situation, if we consider what actually happened in the lower Court, no court-fee will be payable on the appeal at all, since in the lower Court there was onlv a reference made by the Collector under the Act and neither the appellant nor the respondents 2 to 4 herein were under an obligation to pay and did pay any court-fee. Very naturally that is not the contention of the appellant before us. In this context, the expression in the section "the fee that would be payable in the Court of first instance" is significant. Thus none of the specific provisions in Chapters IV, VI and VIII and in Schedule II and no other provision in Schedule I being applicable to the appeal in question, we hold that Article 1 of the Schedule I applies to this appeal. It is because of this alone, we observed earlier that the omission in this Article of the expression, "not otherwise provided for in this Act occurring in Article 1 of Schedule I to the Central Act," does not make any difference, since if any one of the other provisions applied, this provision cannot apply on the principle that the application of a special provision excludes the applicability of the general provision.
27. Mr. Palaniappan, learned counsel for the appellant, then contended that this Court may dismiss the appeal on the ground that proper court-fee has not been paid. The object of this argument was that the appellant should not be compelled to pay the deficit court-fee. We are unable to accede to this request at this stage. We have already pointed out that after the appeal was heard and we decided to dismiss the appeal on merits and when we were about to dictate our judgment, we noticed the actual court-fee that has been paid on the memorandum of appeal. Therefore, at this stage, there is no question of giving time to the appellant to pay the deficit court-fee and on, his failure to do so dismissing the appeal on the ground or treating that proper court-fee has not been paid and hence dismissing the appeal on that basis. Section 20 of the Madras Act states:
"In any inquiry relating to the fee payable on a plaint, written statement, petition, memorandum of appeal or other document, or to the valuation of the subject-matter of the claim to which the plaint, written statement, petition, memorandum of appeal or other document, relates, in so far as such valuation affects the fee payable, the Court may, if it considers it just or necessary to do so give notice to the State Government: and where such notice is given the State Government shall be deemed to be a party to the suit or other proceeding as respects the determination of the question or questions aforesaid: and the Court's decision on such question or questions shall, when it passes a decree or final order in such suit or proceedings, be deemed to form part of such decree or final order."
It is with reference to this section, we Rave notice to the Government through the Government Pleader and consequently this section will have effect.
28. The result is, the appeal fails and is dismissed; with costs of respondents 2 to 4. The appellant will pav the deficit court-fee to the Government on the basis that the court-fee payable on the memorandum of appeal is ad valorem, on the entire compensation deposited into Court, namely Rs. 97.977.94.