Avtar Singh and another vs Smt. Kamlesh Kalia and other

Pritam Singh Pattar, J.—This is a revision petition filed u/s 115 of the CPC by Avtar Singh and another against the order dated September 23, 1974, of the Sub-Judge IInd Class, Jullundur, whereby he decided that the plot in dispute is a part of the khasra numbers mentioned in the amended plant, and that the suit was properly valued for purposes of Court free and Jurisdiction.

The facts of this case are that Banarsi Dass, resident of village Pandori Kad, Tehsil and District Hoshiarpur, was a member of the Partap Cooperative House Building Society Limited, Jullundur. This Society purchased Khasra Nos. 29843/21340, 29844/21320 and 29845/ 1320, bearing Khewat Nos. 4228, 4231 and 5067 and Khatauni Nos. 5469, 5473 and 6401, as entered in the Jamabandi for the year 1969-70 of Jullundur City. This land was purchased by the Society for the purpose of demarcating the same into plots and allotting the same to its members. After the death of Banarsi Dass, plot No. 180 measuring Kanal 2 Marlas demarcated out of the aforesaid land was allotted to Smt. Kamlesh Kalia Plaintiff by the Society widow of Banarsi Dass deceased and sale deed dated March 22, 1968, for Rs. 2,754.78 was executed in her favour. The possession of the plot was delivered to her. It is alleged that Avtar Singh, defendant No. 1, took forcible possession of this land and he did not deliver its possession to her in spite of repeated requests. The plaintiff Kamlesh Kalia, therefore, filed this suit for possession of this plot No. 180 against Avtar Singh defendant and others.

The suit was contested by the defendants on various grounds. It was pleaded inter-alia that the plot in dispute is not a part of the khasra numbers given in the heading of the plaint, and that the suit is not properly valued for purposes of Court-fee and jurisdiction. On these pleadings of the parties, the following preliminary issues were framed by the trial Court :--

(1) Whether the suit is not properly valued for the purposes of Court-fee and jurisdiction ?

(2) Whether plot in dispute (No. 180) comprises the Khasra Nos. mentioned in the amended plaint ?

That Sub Judge held that the suit was properly valued for purposes of Court fee and Jurisdiction and decided issue No. 1 against the defendants. Issue No. 2 was held in favour of the plaintiff. Feeling aggrieved Avtar Singh and Kalu Ram defendants filed the revision petition against this order.

The description of the plot No. 180 measuring 1 Kanal and 2 Marlas as given in the beading of the plaint is as follows :--

North Plot No. 179

South Plot No. 181

West Plot Nos. 186 and 187

East Garha Road.

This plot, according to the plaintiff, is a part of Khasra Nos. 29843/21349 measuring I Kanal 7 Marlas, 29844/21320 measuring 4 kanals 3 Marlas and 29845/21320 measuring 19 Kanals 3 Marlas, vide copy of the Jamabandi, Exhibit P. 2. It is also clear from Exhibit P. 2 that the annual land revenue assessed on Khasra 29843/21360 is only 36 paise, on 29844/21320 is Re. 1/- and on 2,845/21320 is Rs. 7.80. There is absolutely no proof on the ale to show that how much are out of which of these Khasra numbers is comprised in plot No. 180 in dispute.

The only question for decision in this revision petition is whether this case is governed by section 7 (v) (b) or by section 7 (v) (d) of the Court fees Act. The relevant provisions of the Act, with which we are concerned, read as follows :--

The amount of fee payable under this Act in the suits next hereunder mentioned shall be computed as follows :--

* * * * *

(v) In suits for the possession of land, houses and gardens according to the value of the subject matter, and value shall be deemed to be where the subject-matter is land, and

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

(b) Where the land forms an entire estate, of a definite share of an estate, paying annual revenue to Government, or forms part of such estate, and is recorded as aforesaid ; and such revenue is settled, but not permanently, ten times the revenue so payable ;

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

Where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed a above mentioned, the market-value of the land.

Now, in the instant case the plaintiff is not suing for a defined share of an entire estate paying annual revenue to the Government, but she is suing for a plot of land, which is admittedly not separately assessed to land revenue. It is well-settled law that where a suit is filed for a part of an estate and such part is not separately assessed to land revenue, the Court-fee has to be paid on the market-value of the land u/s 7(v)(d) of the Court-fee Act. It is not permissible in such a case either to pay Court-fee on the basis of land revenue for the entire estate in which the part claimed is situated or to compute it by working out the proportion of the land revenue in respect of such part and pay Court-fee on the proportionate multiple of the land revenue vide Sarjit Kumar v. Jai Paul etc. 1974 CLJ 657 (FB) Balu Deochand Kulmi and Another Vs. Fundibai Amichand Kulmi, and P. Kesanna Vs. Boya Bala Gangappa and Another, In the instant case the plot in dispute is not separately assessed to land revenue. It is alleged to have been carved out of the three khasra numbers mentioned above. But, there is no proof on the file that what portion of each of those khasra numbers is included in this plot Consequently, the present case is not covered by section 7(v)(b) of the Act and this case is governed by clause (d) of section 7(v) of the Act. The decision of the learned Sub-Judge is incorrect and must be set aside.

As a result, this civil revision is accepted and the decision of the Subordinate Judge on issue No. 1 is set aside. It is directed that this case is covered by section 7(v)(d) of the Court-fees Act and the plaintiff must pay Court-fee on the market value of the plot in dispute. The file of the case is directed to a sent immediately to the trial Court. The parties are directed through their counsel to appear in that Court on August 11, 1975. In view of the law point involved, there will be no order as to costs.