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Prithi Singh and ors. Vs. Milkha Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. Nos. 82 and 83 of 2004
Judge
Reported inAIR1951J& K18
ActsCourt-fees Act, 1870 - Section 7; ;Sults Valuation Act, 1887 - Sections 3 and 9 - Rules 1
AppellantPrithi Singh and ors.
RespondentMilkha Singh and ors.
Appellant Advocate Rup Chand Bhagat, Adv. on behalf of the Custodian; Harbans Bhagat, Adv.
Respondent Advocate Lok Nath Sharma, Adv.
DispositionApplication dismissed
Cases ReferredPurshotam Lal v. Piyare Lal
Excerpt:
- .....(vide explanation to section 7(v), court-fees act)--in other words khewat --if a part of the estate is separately assessed a suit for fractional share of such part will be governed by clause (b) for purposes of valuation & the court, fee will have to be paid according to the proportional amount of revenue for the fractional share sued for. there is a difference of opinion, however, as to the question whether a suit for specific plot of land comprised in a separately assessed part of an estate will come within the above rule so as to be governed by clause (b) read with the rule. according to the allahabad high court such a suit will not come under that rule as fehe expression 'fractional share' therein can only refer to an indefinite share & not to a definitely demarcated area and.....
Judgment:

Shahmivi, J.

1. This judgment shall dispose of civil Heviaion Petitions Nos. 82 & 83 of 2004 against the orders of the Dist. J. Jammu, affirming the direction of the Munsiff, Jammu, by which the two plaints in the two cases were ordered to be returned to the plffs. for presentation to the proper Court on the ground that the Court of the Munsiff had no jurisdiction to try the suits. The facts out of which these revision applications have arisen are briefly as follows :

2. Two suits for joint possession on the basis of the right of prior purchase were instituted by the plffs.-applicants against the defts.-opposite party, consisting of vendors & vendees of two portions of land, 33 Kanals & 14 Marias & 22 Kanals & 14 Marias, out; of Khewat No. 22/23 assessed to land revenue of Rs. 65-9-3 measuring 169 Kanals & 2 Marias situate in village Paloura, Tehsil Jammu, for Rs. 10,000 & Rs. 6,000 vide sale deeds dated 12th Jeth & nth Jeth 2001 respectively. The plffs. pre-emptors valued the subject matter of each of their Buitsfor purposes of court-fee at 8 times the proportionate land revenue assessable on the fractional share sought, calculated in reference to the amount of land revenue payable on the whole Khewat namely, Rs. 65-9-3 & for purposes of jurisdiction at 50 times such proportionate land revenue. The defts. took an objection that the valuation in the plaints for purposes of jurisdiction was not correctly given & that the suits should be valued according to the market value of the property sold. The learned Munsiff decided that both the suits fell under Clause (c) of Rule 1 & not under Clause (a) of Rule 1 read with Rule 2 of the Rules made under Sections 3 & 9, Suits Valuation Act. In concluding part of his order he observed that even if the suits were to come under Clause (a) of Rule 1, 50 times revenue payable on the Khewat would amount to more than Rs. 1,000 & even thus he would have no jurisdiction to try these suits. On appeal the learned Dist. J. upheld the decision of the learned Munsiff in both the cases, As the wording of Clauses (a) & (c) of Rule 1 of the Rules made under Sections 3 & 9, Suits Valuation Act, bears close resemblance to that of Clauses (b) & (d) of Sub-section (v) of Section 7, Court-fees Act, & as these clauses of Rule 1 of the Rules under the Suits Valuation Act are dependant upon the aforesaid clauses of Section 7(v), Court fees Act, the learned Dist. J. discussed at length the question whether these suits fell under Section 7(v)(b) or Section 7(v)(d), Court-fees Act, & came to the conclusion that the valuation of these suits for purposes of court-fee must be under Clause (d) of Section 7(v), Court-fees Act, & not under Clause (b) thereof & for purposes of jurisdiction the cases clearly fell under Clause (c) of Rule 1 of the Rules made under the Suits Valuation Act, & not under Clause (a) thereof.

3. Elaborate arguments have been addressed to us by the learned counsel on either side on the point whether these cases fall within Clause (b) or Clause (d) of Section 7(v), Court-fees Act. A large number of rulings of the different High Courts--including those of this Court--has been cited before us. These included, Reference under Court-fees Act, 1870, Section 5 : 16 ALL. 493, Chandhdn v. Bishan Singh, 33 ALL. 630 ; Mt. Haliman v. Mt. Mediya, A.I.R (20) 1933 ALL. 414 ; Randhir Singh v. Randhir Singh, A.I.R. (24) 1937 ALL. 206; Fata v. Khan Bahadur, 46 P. R. 1908 : Kuljas Rai v. Palasingh, A.I.R. (32) 1945 Lah. 15; Subramania Ayyar v. Rama Ayer, A.I.R. (14) 1927 Mad. 1002 ; Purshotam Lal v. Piyare Lal, A.I.R. (35) 1948 E. P. 9; 6 J. & K. L. R. 61; 4 J. & K. L. R. 325 and 3 J. & K. L. R. 73. Clauses (b) & (d) of Section 7(v), Court-fees Act, run as follows :

'(b) whore the land forms an entire estate, or a definite share of an estate paying annual revenue to Govt. or forma part of such estate & is recorded as separately assessed with such, revenue, eight times the revenue payable,'

'(d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate & is uou separately assessed the market-value of the land.'

These clauses have got to be read along with a rule made by His Highness under Section 35, Court-fees Act, & published at p. us of the Rules & Orders for the Guidance of Courts subordinate to the High Courfc of Judicature, Special Laws, Vol. III. It reads as follows :

'(11) to direct that when a part of an estate paying annual revenue to the Govt. under a settlement which is not permanent is recorded in the Collector's register as separately assessed with such revenue, the value of the subject-matter of a suit for the possession of, or to enforce a right of pre-emption in respect of a fractional share of that part shall, for the purposes of the computation of the amount of the fee chargeable in the suit, be deemed not to exceed 8 times euch portion of the s-evenue .separately assessed on that part, as may be rateably payable in respect of the share.'

4. The effect of Clauses (b) & (d) of Section 7(v), Court-fees Act, & of the rule mentioned above has been tersely put in 16 ALL. 493 which comes to this that where the subject-matter of the suit is : (a) an entire estate or definite share of an estate paying revenue to Govt.; or, (b) part of an estate recorded as separately assessed ; or, (c) a fractional part of a part recorded as separately assessed under the rule, 8 times the land revenue & in other cases the court-fee is payable on the market value of the land. In A.I.R. (14) 1927 Mad. 1002 almost all the previous case law of the different High Courts on the subject has been discussed. Where the rule has been applied, in case of an estate, i.e., ''land subject to the payment of revenue for which the proprietor or farmer or raiyat shall have executed a separate engagement to Govt. or which, in the absence of each engagement, shall have been separately assessed with revenue' (vide explanation to Section 7(v), Court-fees Act)--in other words Khewat --if a part of the estate is separately assessed a suit for fractional share of such part will be governed by Clause (b) for purposes of valuation & the court, fee will have to be paid according to the proportional amount of revenue for the fractional share sued for. There is a difference of opinion, however, as to the question whether a suit for specific plot of land comprised in a separately assessed part of an estate will come within the above rule so as to be governed by Clause (b) read with the rule. According to the Allahabad High Court such a suit will not come under that rule as fehe expression 'fractional share' therein can only refer to an indefinite share & not to a definitely demarcated area and will, therefore, fall under Clause (d) of Section 7(v), Court-fees Act. A.I.R. (14) 1927 Mad. 1002, however, takes the opposite view. According to it there is no weighty reason for drawing this distinction. It alao refuses to distinguish between a simple & a complicated fraction, i. e., a fraction like 1/2 or 3/4 & a fraction like 273/793. A.I.R. (32) 1945 Lah. 15 and A.I.R. (35) 1948 B. P. 9 also take this view. For the purpose of the present case, however, it is not necessary to go into this controversy. In those cases it is quite clear that Clause (b) of Section 7(v) does not apply, because the lands sold neither constitute an entire estate nor a definite share of such an estate, nor a part of such estate recorded as separately assessed with such revenue. These cases also do not attract the provisions of the rule, because, while in each of these suits the land in respect of which right of prior purchase is sought, is a fractional share of the whole estate, i.e., the Khewat, it is not a fractional share of a part of an estate or Khewat of which the land revenue has been separately assessed & recorded in the Collector's register. If these suits are to be brought within the rule, then they must satisfy all the conditions laid down under the rule. It is important to note that the rule does not refer to a case where an estate is recorded in the Collector's register as separately assessed with such revenue but to a case where a part of an estate or Khewat is recorded as separately assessed to such revenue. It appears to me that so far as this point is concerned there is no conflict whatsoever between the different authorities cited by the learned counsel for the applioants. Even A.I.R. (32) 1945 Lah. 15 & the basic authority on which that ruling is based, namely, 46 P. R. 1908 and the subsequent East; Punjab ruling reported as A.I.R. (35) 1948 E. P. 9 do not contradict this view. It appears that in all these cases fractional share sought was part of an estate and that part, of which it formed a fraction, was recorded in the Collector's register as separately assessed with land revenue. It appears So me absolutely clear that possessory or preemptive suit for a portion of an estate can come under Clause (b), only if it is either a definite share of an estate or a part of the estate which is separately assessed to revenue & it can attract the rule under which remission is granted only if it is a fractional share of a part of Khewat which has been separately assessed to revenue. All obher cases must fall under Clause (d). I am, therefore, of the opinion that the learned Dist. J. has rightly decided that the valuation for purposes of court-fee in these suits must be under Section 7(v)(d) & not under Section 7(v)(b). In this view it is also clear that for purposes of jurisdiction both these suits fall under Clause (c) of Rule 1 of the Rules made under the Suits Valuation Act and not under Clause (a). Needless to say that the view taken by me in these revision applications is also consistent with the three earlier decisions of this Court referred to above.

5. For the foregoing reasons, I would dismiss both the revision applications with costs.


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