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PETITIONER: MADHAORAO & OTHERS

       Vs.

RESPONDENT: STATE OF  MAHARASHTRA

DATE OF JUDGMENT29/01/1971

BENCH: GROVER, A.N. BENCH: GROVER, A.N. HEGDE, K.S.

CITATION:  1972 AIR   45            1971 SCR  (1) 604  1971 SCC  (1) 542

ACT: Bombay  Court Fees Act, 1959-Section 6(i) (v) and Cls.  (a), (b) and (c)-Basis of calculation of court fee where  subject matter is land.

HEADNOTE: In  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, HELD  :  Under section 6(i)(v) in a suit for  possession  of land  the court fee has to be calculated according  to  what has been provided in subclauses (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 (a), (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 A]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1728 of 1967. Appeal  by special leave from the judgment and  order  dated February 23, 1967 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 Judgment of the Court was delivered by Grover,  J. This is an appeal by special leave from a  judg- ment  of the Bombay High Court (Nagpur Bench).   The  appel- lants 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 villages were Malguzari villages.  By virtue  of the   provisions   of  the  Madhya  Pradesh   Abolition   of Proprietary Rights (Estates, Mahals, 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, claimed a declaration that they still continued to be owners as before and wanted a permanent injunction restraining  the

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Government    from    interfering   with    their    rights. Alternatively it was prayed that if the Government was found to be in possession then a decree for possession be  granted in their favour.                             605 The  Court  Fee which was paid by the  appellants  was  cal- culated  on  the  following  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 owing to the injunction  claimed an  additional court fee of Rs. 501 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 appellants were directed to pay court fee on that amount and make appropriate amendments in the plaint. 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 Bombay Court Fees Act, 1959, which was in  force at the material time.  This provision may be reproduced               "In  suits for the possession of land,  houses               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 according  to the value of the subject matter of  the  suit. So  far as 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 valued as on the  date  of the suit without taking into consideration the  improvements which  might have been made.  The value was of  the  subject matter  and it would be that value which would  be  relevant for  the purpose 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  the court fee is payable under s. 6 (i) (v) even with regard  to land 606 on  its value which according to the counsel for  the  State would  be  the market value.  In our judgment S. 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 subject matter is a house or a garden, 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 the 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)

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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. 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 such a 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 court 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 set aside.  The case is remanded to the trial court for disposal in accordance with law.  Costs shall abide  the event. K.B.N.                                   Appeal allowed. 607