G04

MADHAORAO & OTHERS

STATE OF MAHARASHTRA

January 29, 1971

(K. S. HEGDB AND A. N. GROVER, JJ.J

Bombay Court Fees Act; 1959-Section 6(i) (v) and Cls. (a), (b) and (c)-Basis of ct:li:u/ation of court fee where subject matter is land.

Jn a suit for possession of land court fee was held to be payable, under s. 6(1) (v) of the Bombay Court Fees Act, 1959, on the value of the land.

On appeal, c

HELD : Under section 6(i) (v) in a suit for possession of land the coart fee has to be calculated according to what has been provided in sub clauses. (a) (b) and (c) with regard to different categories of land. It may be that in cl. ( v) the land which has not been assessed to land revenue is not covered by clause (aJ, (b) and (c) but then the court fee will have to be calculated under some other provision of the Act but not on the basis of the value of the land. [606 Al D

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1728 Of 1967.

Appeal by special leave from the judgment and. order dated February 23, J.967 of the Bombay High Court, Nagpur Bench in Civil Revision No. 32 of 1965.

W. S. Barlingay and A. G. Ratnaparkhi, for the appellants. ''

M. C. Bhandare and S. P. Nayar, for the respondent.

The fodgment of the Court was delivered by

Grover, J.

This is an appeal by special leave from a judg- F ment of the Bombay High Court (Nagpur Bench). The appelluts had filed a suit for claiming proprietary rights in a property which was known as "Navegaon tank" and which consisted of several khasras with a total. acreage of 3104 odd. These vil!ages were Malguz!ui. villages.

By virtue of the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals,

G .

Alienated Lands), Act, 1950 the malguzari of this tank were

deprived of their rights and the Government took over possession.

The compensation was paid by the Government after holding enquiry provided by the Act.

The appellants, however, claim ed a declaration that they still continued to be owners as before and wanted .a permanent injunction restraining the Government H from interfering with their rights.

Alternatively it was prayed that if the Government was found to be in possesion then a decree for possession be granted in their favour.

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MADHAORAO v. MAHARASHTRA (Grover, /.) 605

The Court Fee which was paid by the appellants was calculated on the foliowing basis.

It was alleged that compensation of Rs. 1126/- only had been paid to the proprietors and therefore the tank had to be valued on the basis of that figure

for the purpose of court fee and jurisdiction. In addition owingto the injunction claimed an additional court fee of Rs. 50/- B was paid.

On behalf of the State an objection was raised in the trial court that the value of the tank would not be less than Rs. 10,00,000/- and court fee on that amount should have been paid.

The trial_ court came to the conclusion that the sUit was for possession of land on the evidence which was produced it was held that the value of the land was Rs. 25,00,000/-. The c

appellants were directed 1~0 pay court f~ ori that amount and make appropriate amendments in the plain:t.

The appellants approached the High Court on the revisional side and challenged the decision of the trial court on the question of court fee. The High Court referred to s. 6(i) (v) of the Dom bay Court Fees Act, 1959, which was in force at the material time. This provision may be reproduced :-

"In suits for the possessfon of land, house~ and gardens-according to the value of. the subject matter; and

such value shall be deemed to be, where the subject matter is a house or garden-according_ to the market value of the house or garden and where the subject matter is land."

(a) ......... .

(b) ......... .

(c) ......... .

According to the High Court the court fee was payable accOi:ding to the value of the subject matter of the suit.

So far 8.9 the houses and gardens were concerned it was the market value on which the court fee had to be paid.

As regards .the land subclauses (a) , (b) and ( c) contained a qualification with regard to those lands which were liable to pay land revenue to; the State.

Since tank was land covered under water it had to be v.alued as on the date of the sui.t without taking into consideration the improvements which might have been mad~. The value was .of the

subject matter and it would be that value which would be relevant for the purp0se of court fee and jurisdiction. The matter was remanded to the trial court for further enquiry in the matter.-

It appears that according to the view of the High Court . t1'e -court fee is payable under s. 6 ( i) ( v) even with regard to land

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SUPREME COURT REPORTS

[1971]3 S.C.R

on its value which according to the counsel for 'the State woulJ be the market value. In our judgments. 6(i){v) does.not admit of any such method of calculating the court fee where the subject matter is land.

There is no doubt that where the subjei.t matter is a house or a gar'tien, in a suit for possession the court fee has to be paid according to the market value of the house or garden but where the subject matter is land $e court fee has to be calculated according to what has been provided in the subclauses (a) , ( b) and ( c) with regard to different categories of land.

It may be that in clause ( v) the land which has not been assessed to land revenue is not covered by clauses (a), ( b) and ( c) but then the courrfee will have to be calculated under some other provision Qf the Act but not on the basis of the value of the land.

If there is any lacuna in the Bombay Act that will not justify the court in straining the language of clause (v) and reading it in suclra way that if the land does not fall within sub-clauses

(a), (b) and (c) mentioned therein it must be valued in the same way as a house or a garden and court fee should be paid on that value.

If, however, it is found that the land underneath the tank is assessed to land revenue then there is no difficulty and the conn fee has to be calculated in accordance with the provisions of s. 6(i) (v). But if the court fee cannot be determined under that provision it will be for the trial court to decide, under which provision court fee is payable and 'the appellant shall be required to pay that amount of court fee which is payable under the appropriate provision.

The appeal is consequently allowed and the order of the High Court is et aside.

The case is remanded to the trial court for disposal in accordance with law. Costs sh.\111 abide the event.

K.B.N.

Appeal allowed.

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