1. The petitioners are the plaintiffs in O. S. No. 192 of 1963 on the file of the District Munsif Court. Villupuram. They filed the suit for themselves and on behalf of the other owners of the fishery and vizhal grass rights in the Peria Eri and Ayyaneri in the village of Kankaianur. Villupuram taluk,. belonging to the Government for a declaration of their right to the fishery and the long grass produce in the said tanks and for an injunction restraining the defendants from interfering with their said rights. According to the averments in the plaint, the group of persons mentioned in paragraph 3 of the plaint, are entitled to the fourteen shares in the said fishery and vizhal grass rights in the suit tanks. Though the petitioners own only a fractional share representing among themselves about two shares in the aggregate. the defendants 4 to 7 are co-owners owning less than a moiety of the shares, the suit has been filed on behalf of the general body owning the entire fourteen shares. They valued the relief in the plaint as one falling under Section 25(b) of the Court-fees Act mentioning the market value of the fishery rights and vizhal grass rights as Rs. 1,000/- each aggregating in all to Rs. 2,000/-. On the objection taken by the defendants the learned District Munsif held that the claim was one falling under S. 25(d) of the Court-fees Act and wanted to proceed with the trial of the suit. But the defendants preferred a revision to this court and urged that the suit should have been valued under Section 25(b) of the Court-fees Act, that the market value of the rights claimed should be assessed at 20 times the annual value of the produce and that the District Munsif's court would have no pecuniary jurisdiction to try the suit. This court issued notice to the Government Pleader and he also the Government Pleader and he also supported the contention of the contesting defendants. As the plaintiffs filed an application for amendment of the plaint by altering the claim as one for easement and wanted to pay court-fee under Section 25(d) and Section 31 of the Court-fees Act. this court forwarded the amendment petition to the trial court and directed the question of the court-fee to be decided afresh in the light of the subsequent developments. The learned District Munsif to whom this amendment petition was forwarded held that the suit should be valued under Section 25(b) of the Court-fees Act, at 20 to 30 times the annual value, and in this view he found that the District Munsif's Court had no pecuniary jurisdiction to entertain the suit and dismissed the petition for amendment and returned the plaint for being presented in the proper court having jurisdiction to entertain the same. The plaintiffs unsuccessfully preferred an appeal to the District Court against the order of the trial court returning the plaint for being presented in the proper court and thereafter filed this civil revision petition.
2. The petitioners have not filed any revision against the order of the learned District Munsif dismissing their application for amendment. Hence the question of the court-fee has to be determined only on the basis of the averments contained in the original plaint.
3. There is no definition of the term immovable property in the Madras Court-fees and Suits Valuation Act, 1955, hereinafter referred to as the Act. But under Section 3(4) of the Act, the expressions used and not defined in the Act, or in the Madras General Clauses Act 1891 (Madras Act 1 of 1891), but defined in the Civil P.C. 1908, shall have the meanings respectively assigned to them in the said code. Under S. 3(14) of the Madras General Clauses Act. 1891, immovable property shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth. Hence the rights claimed in the suit will clearly fall within the definition of immovable property in the Madras General Clauses Act. In Ananda Behera v. State of Orissa. , it has been held that the sale of a right to catch and carry away fish in specific portions of a lake over a specified future period amounts to a licence to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a profit a prendre, which is regarded in India as a benefit that arises out of the land and as such is immoveable property. Reliance was also placed in that case on Section 3(26) of the General Clauses Act 1897, which defined immoveable property as including benefits that arise out of the land. In Secy, of State v. Dist. Board, Tanjore, AIR 1930 Mad 679 it has been held by this court that an exclusive right of fishery in a locality in the sense that even the lawful owner is excluded from its enjoyment is not a mere profit a prendre, but is a heritable and transferable interest in immoveable property, which can be acquired by 12 years' adverse possession as against the lawful owner. It is clear from the decision in Badri Prasad v. State of Madhya Pradesh, 1970-1 SCJ 757 at p. 763 = (AIR 1970 SC 706) that the grant to catch and carry away the fish, in other words, a profit a prendre is immoveable property within the meaning of the Transfer of Property Act read with Section 3(26) of the General Clauses Act. In Mahadeo v. State of Bombay, , the Supreme
Court observed that things rooted in the earth as in the case of trees and shrubs are immoveable property both within the General Clauses Act and the Transfer of Property Act. Dealing with the contention that the agreement conveyed various produce such as tendu leaves falling within the expression 'growing crop and grass' dealt with as goods in the Sale of Goods Act, the Supreme Court held that the petitioners in that case were not only to get leaves from the extant trees, but also such trees as might grow in the future, that they could even burn the old trees, presumably. so that others might grow in their place and that in those circumstances the agreements could not be said to be contracts of sale of goods simpliciter, but created proprietary rights. It should be noted that the vizhal grass produce claimed by the petitioners were not only for the current years, but also permanently for the future. Thus there can be no doubt that the rights claimed in the plaint with regard to fishery rights and long grass produce in the suit tanks are proprietary rights and are immoveable property. Hence it is possible to content that the words in Sec. 25(b) of the Act are wide enough to comprehend the claim in the present suit, which is in respect of immovable property.
4. Section 31 of the Madras Court-fees and Suits Valuation Act of 1955 deals with suits relating to easements. The learned advocate for the petitioners fairly conceded that the rights claimed by the plaintiffs in the suit cannot be held to be easements falling under Section 31 of the Act. In the earlier Madras Court-fees and Suits "Valuation Act 1870, there was no specific provision for suits relating to easements, as in Section 31 of the present Act. Section 7(iv)(e) of that Act related to suits for a right to some benefit (not herein otherwise provided for) to arise out of land. In the marginal note for the clause, the suit is described as one for easements. But there is a clear difference between the wording of Section 7(iv)(e) of the Madras Court-fees and Suits Valuation Act of 1870 and S. 31 of the present Act. But suits for declaration of easement right or right to some benefit arising out of land and for consequential reliefs such s injunction etc., were classified under the old Act as falling under Section 7(iv)(c). When Section 7(iv)(c) of the Court-fees and Suits Valuation Act of 1870, as amended came into force, the question arose whether such suit should be valued at half the value of the property. In re Raja K. J. V. Naidu. 1946-1 Mad LJ 61 = (AIR 1946 Mad 235) the suit was for a declaration that the plaintiffs have certain customary and mamool rights, inter alia to graze cattle, to take leaves for manure, to cut and take wood required for fuel and other buildings and domestic purposes and for agricultural implements and to take grass for roofing all free of charges in a forest area belonging to the defendant and there was a prayer for injunction. The suit was valued under Section 7(iv)(e) of the Court-fees Act of 1870. It was urged that the case would fall under Section 7(iv)(c) of the old Act and the proviso introduced by the Madras Amendment and this contention was rejected. Relying on the following passage in the decision of Jackson, J. in Venkitakrishna Pattar In re, 52 Mad LJ 121 = (AIR 1927 Mad 348), it has been held that the expression ' with reference to' in the Madras proviso to Section 7(iv)(c) of the Court-fees Act of 1870 means involving the possession of land and so unless the relief asked involved the possession of land, the Madras proviso would not apply and as easements do not involve possession of land, house or gardens, the proviso does not apply to easements at all.
"In the present suit the question of title is not raised at all; it is only a question of easement and the difficulty is to decide how far the Madras proviso is applicable in such cases. Inasmuch as the relief-sought is the declaration of a right of easement, the relief may be said to be with reference to immoveable property; but it refers to no immoveable property that can be possessed as contemplated by Section 7, C1. (v). It almost seems that the proviso should be read with the clause so as to make 'with reference to' mean involving the possession of land, houses or gardens, and then the proviso would not be applicable to easements at all."
Reliance was also placed on the opinion of Varadachariar, J. in Gurunatha Chettiar v. Secy. of State, 70 Mad LJ 625 = (AIR 1936 Mad 201) that the expression 'with reference to' occurring in the Madras amendment really involves the idea that it must have reference to a question of title to immoveable property. It is rightly pointed out in the decision that it is preposterous to say that where a plaintiff wants a right of passage across his neighbour's land the plaintiff should be called upon to pay court-fee on half of the full value of the neighbour's land. It has been held in that decision that the Madras amendment should be confined to cases where title to or possession of immovable property is involved.
5. The learned advocate for the petitioners relied on the decision in Rajagopala Naidu v. Ramasubramania Iyer, ILR 46 Mad 782 = (AIR 1924 Mad 19) (FB) in support of his contention that the right claimed in the suit has no market value. It has been held that a temple, which is devoted absolutely and in perpetuity to religious purposes, even if it is to be regarded as a house, has no market valued. It has been held that a temple, which is devoted absolutely and in perpetuity to religious purposes, even if it is to be regarded as a house, has no market value within the meaning of the terms of Section 7. C1. (v)(e) of the Court-fees Act of 1870. But it could not be said that the fishery and long grass produce rights are leased in public auction, each of it will fetch Rs, 1,000 per year. In fact, it is alleged in the plaint that the several persons owning the 14 shares in the fishery right and the long grass produce were treating the same as property and have been dealing with them as such in various documents of sale, mortgage etc.
6. But having regard to the manner in which the expression 'with reference to any immoveable property' in the proviso to Section 7(iv)(c) of the Court-fees Act of 1870 has been interpreted by this court. it is reasonable to infer that the legislature in using the same expression is Section 25(b) of the present Court-fees Act intended to give the same meaning to the expression. In this view, the suit claim would clearly, fall under Section 25(d) of the Act.
7. Section 7 of the Act provides for determination of the market value. There is nothing in Section 7 of the Act for determining the market value of easements or profit a prendre, or other benefits arising out of land. There was therefore no justification for the lower court in arbitrarily assessing the market value of the suit claim in respect of the fishery and long grass produce at 20 or 30 times the alleged annual income. It should be noted that the assessment of market value on the basis of capitalised value of the income is only one mode of valuation. Even if the case fell under Section 25(b) of the Act, the learned District Munsif should have proceeded to take evidence and ascertain the market value of the suit claim as the question involved jurisdiction of the court. But in view of may finding that the claim falls under Section 25(d) of the Act, the court-fees has to be computed on the amount at which the relief sought is valued in the plaint. The decision of the learned District Munsif prior to remand that the suit falls under Section 25(d) of the Madras Court-fees Act of 1955 and that the suit has been properly valued for the purpose of court-fee and jurisdiction is correct and it is restored and the orders of the courts below passed after remand are set aside and the suit is remanded to the trial court for disposal according to law.
8. The civil revision petition is allowed. The petitioners are entitled to costs in this court and the courts below.
9. Revision allowed.