Jagdish Prasad Verma vs Shahji Rao and Others

K.K. Varma, J.

This is an appeal by a Plaintiff under Order 43, Rule 1 (a)C. P. C. from the order dated 16-7-88 of the Additional Judge to the Court of the District Judge, Shivpuri, in C. S. No 1-A/11 (old No. 4-A/88) in the Court of The District Judge, Shivpuri, by which the plaint, containing a single valuation for three reliefs of declarations at Rs. 51,00/- and a single valuation of the three reliefs of permanent injunctions at Rs. 200/-was ordered to be returned under Order 7, Rule 10 C. P. C. for presentation in the Court of Civil Judge Class II, Shivpuri, with a finding that the correct valuation of the suit was the amount 20timesof the land revenue (Rs. 9.46P.) of S. No. 491 (old Nos. 435/4, 437/1 and 437/3) and S. No. 492 (old Nos. 458/1, 458/2 and 458/3) total area 37 bighas and 15 biswas situate at Fatehpur Shivpuri and recorded in bhumiswami rights in the Plaintiff''s name.

The Plaintiff''s case is as follows. The bulk of S. N. 492 (27 bighas 18 biswas) is to the south and a part thereof is to the east of S. N, 491 (8 bighas 9 biswas). There are some houses on the lands. The Plaintiff was in possession of all this property on 24-2-1988 (the date of the suit)-in fact he had been in possession for 30 years as an owner in bhumiswami rights.

Defendant No 1. Shahji Rao Angre Son of late ShRi ChandRoji Rao Angre owned S. Nos. 482, 483, 484, 485 lying to the west of parts of the Plaintiff''s S. Nos. 491 and 492. The Defendant No. 1 also owned S. No. 487 which is to the south of his aforementioned lands and to the west of S. No 492. The Defendant No. 1 also owned S. No. 279 which is to the south-west of S. No. 492 To the south of S. No. 487 is S. No. 280 over which the Plaintiff has been exercising the right of way into his lands S. Nos. 491 and 492. Similarly, he has been exercising the right of drainage of rain-water from S. Nos. 491 and 492, into S. No. 488 (belonging to Defendant No. 1''s father)-a narrow strip of land running north-south between parts of S. Nos. 491 and 492 and S. Nos. 482 to 485. These two rights have been exercised for more than 30 years.

The Plaintiff''s grievance is that when the Defendant executed a registered sale deed dated 25-2-1985 purporting to convey S. Nos. 279, 487, 482, 483, 484 and 485 (total area 16 bighas 2 biswas) to Defendant No. 2 the Jan Kalyan Nyas, Shivpuri, the map enclosed with the sale deed represents 8 bighas and 16 biswas of lands out of the Plaintiff''s lands S. No. 491 and 492 and also Government land S. No. 486 area 7 bighas (not shown in the plaint-map) and also the land comprised in S. No. 488.

The Plaintiff alleges that all this had been brought about by the Defendants 1 to 4 acting in collusion with one another.

The Defendant No. 2 made an application to the Tahsildar for mutation of the lands shown in the map annexed to the registered sale deed dated 25-2-1985, The Plaintiff objected to the application and succeeded. In the result the Defendant No. 2''s name was mutated over only 4.79 hectares = 16 bighas 2 biswas of lands on 30-7-1987.

However, on or about 19-2-88 the Defendant Nos. 2 to 4 began digging channels (with a view to putting of pats) to enclose S.N. 488, S. N. 486 (the Government land) and parts of S. Nos. 491 and 492 as the parts of the survey numbers sold by Defendant No. 1 to Defendant No. 2. Similarly, they started questioning the Plaintiff''s right of way over S. N. 280.

The Plaintiff has accordingly sued Defendant No. 1 (the vendo), Defendant No. 2 (the vendee) and Defendants 3 and 4 (the President and the Secretary of Defendant No. 2) and Defendants 5 to 13 (the trustees of Defendant No. 2) for the following specific reliefs:

The valuation clause of the plaint runs as follows:

Defendant No. 4, the Secretary of Defendant No. 2, the Jan-Ka!yan Nyas, Shivpuri made an application purporting to be under Order 7, Rule 11 C. P. C. It is was contended that the Plaintiff had grossly overvalued the suit (for purposes of jurisdiction) so as to file it before the Court of the District Judge, when it should have been valued at 20 times the land revenue of the land in dispute and then the resulting valuation would have brought the suit within the pecuniary limits of the jurisdiction of the Court of the Civil Judge Class II.

Curiously enough, the objecting Defendant also prayed that ad-valorem Court-fees be realised on the valuation of Rs. 51, 200/- and then the plaint be returned for presentation to the Court of Civil Judge (Class II) as the Court.

In this case, valuation clause of the plaint was not drafted with reference to the specific reliefs claimed in the plaint. I will first examine the valuation clause of the plaint in the light of the reliefs set out at para 8 (supra). Each of the reliefs Nos (a), (ba) and (sa), which were with reference to separate declarations, should have been valued seperataly for the purposes of jurisdiction.

The relief in Clause (da)-for a mandatory injunction to the Collector, Shivpuri-should have been valued separately.

Similarly, the relief of permanent injunction contained in Clause (ya) and the two different kinds of permanent in juntions included in Clause (ra) -all the three reliefs of permanent injunction-should have been separately valued for the purposes of Court-fees.

Thus the Plaintiff, put up a composite valuation of Rs. 51,000/-for jurisdiction with respect to the three declarations instead of giving three separate valuations (for porposes of jurisdiction) for the declaratory reliefs. Again he made a single valuation of Rs. 200/- for an unspecified relief of permanent injunction, instead of four separate valuations (for purposes of Court-fees and jurisdiction) with respect to the reliefs of injunctions in Clauses (da), (ya) & (ra).

The learned Additional District Judge did not scrutinise the pleading with reference to the reliefs set out at plaint para 17. He referred to, but did not set out the provisions of S. 7 (iv), (d) and (e) of the Court Fees Act (VII of 1870) and those of S. 8 of the Suits Valuation Act (No. VII of 1887). The impugned order does not contain any reference to the Schedule (II) Article 17 (iii) of the Court Fees Act and to Ss. 3, 4 and 9 of the Suits Valuation Act and the Rules framed by the State Government in exercise of the powers conferred by S. 3 of the Suits Valuation Act. Similarly, the Rules framed by the Judicial Commissioner''s Court Nagpur, u/s 9 of the Suits Valuation Act, were clearly not even at the back of the mind of the learned Judge.

Again, the learned Additional District Judge did not refer to the provisions of Sections 5 (a) and 7 of the M. P. Civil Courts Act, 1958 (No 19 of 1958) and also those of S. 15 of the Code of Civil Procedure.

The learned Additional District Judge observed that the plaint did not disclose the basis for the valuation of ''the suit''-he should have said ''the declaratory reliefs,-at Rs. 51,000/-. He, however, cited no law or Rule or case law in support of his aforementioned observations. The grounds, reasonings and the conclusions in the impugned order are found at paragraphs 5 to 7.

The learned Additional District Judge says at paras 5 and 6 that according to the provisions of 3, 7 (iv) (d) and (e) of the Court Fees Act, the suit should have been valued on the basis of 20 times the land revenue and paid Court fees on permanent injunction and easements accordingly, vide S. 8 of Suits Valuation Act.

Now, S. 7 (iv) (d) and (e) is as follows:

Computation of fees payable in certain suits:The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:

(iv) In suits -

(d) for an injunction-to obtain injunction.

(e) for easements-

In all such suits the Plaintiff shall state the amount at which he values the relief sought:

In fact, determination of the value of land in Madhya Pradesh for purposes of jurisdiction on the basis of the revenue payable of the land is confined to the suits mentioned in paragraphs (v), (vi) and paragraph (x), Clause (d) of Section 7 of the Court Fees Act, 1870 (VII of 1870) and for so valuing, the State Government has made Rules in exercise of powers conferred by S. 3 of the Suits Valuation Act.

Section 3 of the Suits Valuation Act, 1887 runs as follows:

Power of State Government to make Rules determining value of land for jurisdictional purposes-(1) The State Government may make Rules for determining the value of land for purposes of jurisdiction in the suits mentioned in the Court Fees Act 1870, Section 7. paragraphs (v) and (vi) and paragraph (x), Clause (d) is in force for the time being in the Uttar Pradesh Section 7, paragraphs (v), (v-A) and (v-B):

Provided that such suit shall provide that the value of land for the purposes of jurisdiction shall in no case be less than the value as determinable for the computation of Court-fees.

The Rules may determine the value of any class of land, or of any interest in land in the whole or any part of a local area, and may prescribe different values for different places within the same local area.

Section 7 paragraphs (v) (a), (b), (c) and (d), (vi) and paragraph (x), Clause (d) of the Court Fees Act, 1870 run as follows:

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

(v) for purposes of land, houses and gardens:

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 land, and-

(a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or where the land forms part of such an esate and is recorded in the Collector''s register as separately assessed with such revenue,

and such revenue is permanently settled-ten times the revenue so payable;

(b) where the land forms an entire estate, or definite share of an estate, paying annual revenue to Government, or where the land forms part of such estate and is recorded as aforesaid,

and such revenue is settled, but not permanently-twenty times the revenue so payable ;

(c) where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment, in lieu of such revenue.

and net profits have arisen from the land during the year next before the date of presenting the plaint- fifteen times such net profits:

but where no such net profits have arisen therefrom-the amount at which the Court shall estimate the land with reference to the value of similar land in the neighbourhood ;

(d) where the land forms part of an estate paying revenue to Govt, but is not a definite share of such estate and is not separately assessed as above mentioned-the market value of the land.

Explanation -The word ''estate'' as used in this paragraph, means-

(i) any land subject to the payment of revenue for which the proprietor or farmer or raiyat shall have executed a separate engagement of Goverment, on which, in the absenceof such engagement, shall have been separately assessed with revenue ;

(ii) Any land held by a person deemed to be a tenant of State under Sections 45 and 59 of the Madhya Pradesh Abolition of Proprietory Rights (Estates, Mahals, Alienated Lands) Act, 1950 (1 of 1991(sic)) or a parson deemed to be a lessee from the State under Sub-section (2) of Section 68 of the Madhya Pradesh Abolition of Proprietory Rights (Estates, Mahals, Alienated Lands) Act, 1950 and any reference to revenue in this paragraph shall, in such cases, be deemed to be a reference to the rent of lease-money payable to the State Government in respect of such land ;

(vi) To enforce a right of pre-emption-

In suit to enforce a right of preemption according to the value of the subject-matter as prescribed in the document furnishing the cause of action for such right and where there is no such document or where the Plaintiff claims to pre-emption for a fair consideration, on the value of the subject-matter as stated in the plaint:

Provided that where the value of the subject-matter, determined by the Court exceeds the value stated in the plaint, the decree shall not be executed until the difference, between the fee actually paid and fee which would have been payable on the value of the subject-matter as determined by the Court shall have been paid.

(x) for specific performance- in suits for specific performance:

(d) of an award according to the amount or value of the property in dispute:

The Rules framed by the State Government u/s 3 of the Suits Valuation Act run as follows:

In exercise of the powers conferred by Section 3 of the Suits Valuation Act VII of 1887, the State Government has made the following Rules for determining the value of land in the Madhya Pradesh and Berar for purposes of jurisdiction in the suits mentioned in paragraphs (v), (vi) and paragraph (x), Clause (d) of Section 7 of the Court Fees Act, 1870 (VII of 1870):

(a) in these Rules ''estate'' means any land subject to the payment of revanue for which the proprietor or farmer or raiyot shall have executed a separate engagement to Government or which in absence of such engagement shall have been separataly assessed with revenue.

The suits for the possession of land mentioned in paragraph (v) of Section 7 of the Court Fees Act, 1870 (VII of 1870) the value of the land shall be deemed to be as follows:

(1) where the land forms an entire estate or a definite share of the estate paying annual revenue to Government or where the land forms part of such an estate and is recorded in the Collector''s register or separately assessed with such revenue, and such revenue is permanently-twenty times the revenue so payable.

(2) where the land forms an entire estate, or a definite share of an estate paying annual revenue to Government or where the land forms part of such estate and is recorded as aforesaid and such revenue is settled but not permanently-fifteen times the revenue so payable.

(3) where the land pays no such revenue or has been partially exempted from such payment or is charged with any fixed payment in lieu of such payment and net profits have arisen from the land during the year next before the date of presenting the plaint- fifteen times such net profits: but where no such net profits have arisen therefrom the amount at which the Court shall estimate the land with reference to the value of similar land in the neighbourhood.

(4) 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 as above-mentioned the market value of the land.

II. In suits, to enforce a right of pre-emption (mentioned in Section 7, paragraph (vi) of the Court Fess Act (VII of 1870), the value of the land shall be computed in accordance with Rule 1.

III. In suits for specific performance of an award relating to land mentioned in Section 7, paragraph x, Clause (b) of the Court Fees Act (VII of 1870), the value of the land shall be computed in accordance with Rule 1.

Section 8 of the Suits Valuation Act, 1887 runs af follows:

Court-fee value and jurisdictional value to be the same in certain suits-Where in suits other than those referred to in Section 4, Court Fees Act, 1870, Section 7, paragraphs v, vi, and (ix) and paragraph x, Clause (d), Court-fees are payable ad valorem under the Court Fees Act, 1870 as in force for the time being in the Madhya Pradesh, the value as determinable for the computation of court-fees and the value for purposes of jurisdiction shall be the same.

Schedule II (dealing with fixed court-fees), Article 17 (iii) and (vi), of the Court-Fees Act, 1870, as obtaining in Madhya Pradesh run as follows:

Number

Proper fee

Plaint or memorandum of appeal in each of the following suits:-

Thirty rupees

(iii) to obtain a declaratory decree where no consequential relief is prayed.

(vi) every other suit where it is not possible to estimate at a money value the subject-matter in diapute, and which is not otherwise provided for by this Act.

Section 9 of the Suits Valuation Act, 1887 runs as follows:

Determination of value of certain suits by High Court-

When the subject-matter of suits of any class other than suits mentioned in the Court Fees Act, 1870, S. 7 paragraphs v. and vi, and paragraph x, Clause (d) and Section 4, or 8 is such that in the opinion of the High Court it does not admit of being satisfactorily valued, the High Court may, with the previous sanction of state Government, direct that suits of that class shall for the purpose of the Court Fees Act, 1870, and of this Act and any other enactment for the purpose of the Court-Fees Act. 1870 and of this Act and any other enactment for the time being in force, be treated as if their subject-matter whereof such value as the High Court thinks fit to specify in this behalf.

The Judicial Commissioner''s Court, Nagpur, framed the following Rules u/s 9 of the Suits Valuation Act, 1887:

Notification No. 1641, dated 28th Sept. 1911 as amended by amendment No. 19 dated 14th July, 1924, Notificatian No. 7777/363 v. dated 12th April 1924.

Suits of the following classes shall for the purposes of the Court Fees Act 1870, the Suits Valuation Act, 1887, the Central Provinces Courts Act, 1917, be treated as if the subject-matter of such suit were of the value of Rs. 400/.

(1) Suits for the restitution of Conjugal rights, for declaration of the validity of marriage, or for a divorce.

(2) Suits for the custody or guardianship of a minor.

(3) Suits for a declaration that an adoption is valid or invalid:

Provided that if a suit for declaration that an adoption is valid or invalid affects a title to property, then the value of that property, if it exceeds Rs, 400/- shall be deemed to be the value of the subject-matter of the suit.

Section 4 of the Suits Valuation Act, 1887 runs as follows:

Valuation relief in certain suits relating to land not to exceed the value of the land.

Where a suit mentioned in the Court Fees Act, 1870 Section 7, paragraphs IV of Schedule II, Article 17, relates to land or an interest in land of which the value has been determined by Rules under the foregoing section, the amount of which for purposes of jurisdiction the relief sought in the suit is valued shall not exceed the value of the land or interest as determined by those Rules.

Now, the subject of the correct valution of the instant suit does not admit of solution by making a bare reference to Section 7 (iv) (d) and (e) of the Court-Fees Act, 1870, because there are three different declaratory reliefs and four different injunctions.

Again, the Rules framed by the State Government (vide para. 23 supra) u/s 3 of the Suits Valuation Act (vide para. 21 supra), apply to lands subject to the payment of separately assessed revenue if the suit is for possession of such lands (vide Section 7 (v) of the Court Fees Act to suits to enforce a right of pre-emption with respect to such lands [vide Section 7 (vi) of the Court Fees Act] but not to the suits u/s 7 (1)(d)and (e) (vide, para. 19 supra).

Thus, the leraned Additional District Judge erred in holding that in the Appellant''s suit the reliefs be valued as in suits [Under Section 7 (vi) (d) (e)] with lands subject to payment of separately assessed revenue as the subject-matter of these reliefs separately assessed on the lands in question.

The learned Judge fell into all kinds of errors because he did not examine the plaint averments, the valuation and the prayer clauses thereof and also because he did not-seemingly-read the provisions of the Court Fees Act, 1870, the Suits Valuation Act, 1887, and the rules framed under the Suits Valuation Act, which have been extracted and reproduced at paragraphs 19 to 25 (supra).

Now a Plaintiff is entitled to give his valuation (for the purposes of jurisdiction) of a relief of declaration and that valuation has to be accepted provided his valuation is not outrageous one way or the Other. The reason is that the matter is not covered by the Suits Valuation Act, 1887 That is the law expounded in Pundalik v. Ramsukhibai'' AIR 1951 Nag 218 by a Division Bench of Bose C. J. and Mudholkar J. (as Their Lordships then were) on following reasoning (at paragraphs 37 to 42):

the next thing is to see whether the matter is covered by the Suits Valuation Act. We do not think it is to begin with, the Suits Valuation Act does not purport to cover all suits. Its preamble states "an Act to prescribe the mode of valuing certain suits for the purpose, etc.". Therefore, clearly it contemplates a class of suit which is not covered by the Act.

Section 9(1) entitles the Provincial Government to ''make rules for determining the value of the land for the purposes of jurisdiction in the suits mentioned in the Court Fees Act The Provincial Government has not made any rules to cover this class, of case, so that section does not apply.

Section 4 provides for among other things suits mentioned in Article 17, Court Fees Act relating to land or an interest in land "of which the value has been determined by Rules under the last foregoing section". As no rules have been framed this section does not apply either.

Section 8 deals with certain suits in which court-fees are payable ad valorem under the Court Fees Act. As fees are not payable ad valorem in suits for a declaration this does not apply either, and as there is no other section which can apply, the only conclusion possible is that the Suits Valuation Act dees not apply.

We are left therefore with Order 7 R. 1 Civil P. C and with Section 15. The former requires a Plaintiff to state the value of the subject-matter of the suit for purposes of jurisdiction and Section 15 requires that the suit be instituted in the Court of the lowest grade competent to try it. Therefore, what we have to determine is, what is the value of the subject-matter when there are no specific rules to determine the value artificially ? The Privy Council tell us in Phul Kumari v. Ghansyam Mishra 35 Cal. 201 at p. 208 (85 IA 22 PC) that in suits for a declaration the value means the value to the Plaintiff and they say:

The value of the property might quite well be Rs. 1,000/-whilethe execution debt was Rs. 10,000/-. It is only if the execution debt is less than the value of the property that its amount affects the value of the suit.

According to Defendant 1 the execution debt here is less than the value of the property therefore, according to the Privy Council it does affect the value of the suit. But in what way ? That Their Lordships do not tell us. All we can say is that the subject-matter of the suit here is a cloud. It is not the property, nor is it the decree....and the only person who can value that cloud is the Plaintiff, and provided his valuation is not outrageous one way or the other his valuation must, in our opinion, be accepted.

I, therefore, hold that the Plaintiff''s own valuation of the declarations (for the purposes of jurisdiction) could not be taken to be an overvaluation and that the learned Judge erred in law in holding that the suit had to be valued at twenty times the amount of the revenue separately assessed on S. Nos. 491 and 492.

The trial Court''s order (at para 7) for the return of the plaint for presentation to the Court of the Civil Judge Class II Shivpuri as the proper Court is liable to be set aside not only in the wake of the findings recorded by me at para 34 (supra) but also on the ground that it is as such untenable in law.

Sub-section (1) of Section 7 of the M. P. Civil Courts Act, 1958 the Court of the District Judge is the Principal Civil Court of original jurisdition.

Under Sub-section (4) of Section 43 of the Act the Court of the District Judge include the Court of the Additional Judge to the Court of the District Judge.

Sub-section (1) of Section 6 of the Act savs that the Court of the District Judge and the Court of the Additioal District Judge shall have jurisdiction to hear and determine any suit or original proceeding without restriction as regards value. It is, therefore, clear that the Court of the District Judge, Shivpuri, and also the Court of the Additional Judge to the Court of the District Judge, Shivpuri had the jurisdiction to hear and determine the suit in question not only at its original valuation, but also on the vauation arrived at by the learned trial Judge.

In this context, I may as well state the law contained in Section 15 of the Code of Civil Procedure, 1908. Section 15 runs as follow:

Court in which suits to be instituted.-Every suit shall be instituted in the Court of the lowest grade competent to try it.

In Bipan Kumar Vs. Sham Sunder, it was held as under:

... It is beyond dispute that the Court of the District Judge has jurisdiction to entertain all suits including suits which are triable by the Senior Subordinate Judge. Sections 24 and 25 of the Punjab Courts Act, 1918 are clear as to that. It may be that by virtue of Section 15 of the Code of CPC the plaint should properly have been filed in the Court of the Senior Subordinate Judge which was the Court of the lowest grade to entertain it. But as the terms of Section 15 themselves imply, there could be a Court of higher grade competent to entertain the suit and that in the present case was the Court of the District Judge. It is now settled law that Section 15 merely prescribes a Rule of procedure. It does not deprive the Court of a higher jurisdiction to entetain the suit....

In Arya Printinidhi Sabha, Punjab Jullundur Vs. Dev Raj Vir Bhan and Another, it has been observed as under:

... It may be pointed out that the rule of Section 15 of the Code of CPC that every suit should be instituted in the Court of the lowest grade competent to try it is merely intended for the protection of the Courts of the higher grade but it does not otherwise affect the jurisdiction of Courts, and the filing of the suit in the higher, will not mean that the suit is not filed in the Court of proper jurisdiction provided that Court is competent to try it.

Irrespectfully concur with the aforementioned exposition of law.

In the result, the appeal is allowed. The findings and the ordering portion of the impugned order are set aside. The Plaintiff has been imeptly drawn with respect to the valuation clause. I make no orders as to the costs of the appeal.

The trial Court shall take back the case on its file and proceed to implement the following directions meant for the Plaintiff.

By 16-3-90, the Plaintiff shall apply for leave to amend the plaint paragraph 14 to delete it and to substitute in its place averments valuing the reliefs (aa), (ba), (sa) at paragraph 1 separately for the purposes of jurisdiction and to state with respect to each of the three reliefs that a sum of Rs 30/- is being paid as the fixed Court-fees. Each of reliefs (da), (ya) and(ra) at paragraphs 17-in all four reliefs because (ra) contains two separate reliefs -shall be valued separately and it be stated that on each of the four reliefs ad valorem Court-fees-mentionig the amount of the Cour-fees-is being paid.

The trial Court shall allow the application after saddling Rs. 25/-as costs payable to the deft. No. 2. After the incorporation of the amendment in the plaint, the trial Court shall give one week''s time to the Plaintiff to pay the deficit Court-fees.

After the deficit Court-fees has been paid, the trial Court shall proceed to hear the suit in accordance with law.

The lower Court''s record along with a copy of this order, be transmitted back within a week.