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Judgment
Ramaprasada Rao, J.—The plaintiffs in O.S. No. 9 of 1962 on the file of the Subordinate Judge, Vellore, who are the Muthavallis of the
Panchapandavamalai Masjid, are the appellants. The main claim of the Muthavallis representing the mosque is that under an ancient inam title deed
the suit properties were dedicated to the mosque by Nawab Sadattba Khan and by reason of such an endowment, the properties are part of a
public wakf to which the Public Wakfs (Extension of Limitation Act of 1959) would apply. The case of the appellants is that they were in
possession of these lands for several years in the past and recently the Government without acquiring the lands under the provisions of the Land
Acquisition Act have interfered with the possession of the plaintiffs and took possession of a part of the wakf properties and converted the same
into pucca roads or tracks. Consequent upon such taking over of the lands of the appellants, they had lost nearly four acres. The further case of the
appellants is that by reason of such dispossession of the lands, they have lost permanently the right to the usufruct of as many as 204 trees thereon
for well over a period of eight years. In these circumstances, the appellants filed the present action in O. S. No. 9 of 1962 on the file of the
Subordinate Judge of Vellore and sought for recovery of possession of the lands and the trees thereon which were so appropriated by the
Government in the manner stated above. On the same cause of action, which according to the plaintiffs, occurred in or about 1960-61, they seek
for possession of the trees which stood thereon and compendiously seek an immediate monetary relief in the sum of Rs. 14,000 from the
defendants, if they are unable to secure possession of the lands and the trees as claimed by them. The plaintiffs paid a Court-fee of Rs. 15, basing
their right to pay such a quantum of Court-fee under G. O. Ms. No. 1617 Home, dated 15th May, 1961. This notification was issued and
published in the usual manner in the Fort St. George Gazette giving relief of reduction of Court-fee payable in respect of suits for restoration of
wakf properties under the Madras Court-fees and Suits Valuation Act. On a check-slip issued by the office for the purpose, the Court suo motu
considered the issue whether the plaintiffs have paid the proper Court-fee on the plaint and whether the allegations made therein would entitle them
to take advantage of the concessional Government Order referred to above and refrain from paying any additional Court-fee, even though,
according to the terms of the plaint, the plaintiffs incidentally seek for a money relief of Rs. 14,000. The learned Judge was of the view that on a
reading of the plaint, the plaintiffs should be deemed to have claimed the compensation of Rs. 14,000 in the alternative for their main claim of
possession and applying Section 6(2) of the Madras Court-fees and Suits Valuation Act of 1955, he was also of the view that the plaint shall be
chargeable with the highest of the fees leviable on the reliefs. The plaintiffs were, therefore, directed to pay a deficit of Court-fee of Rs. 1,035.51).
Challenging the propriety and legality of this order, the plaintiffs have appealed.
Mr. Appu Rao, learned Counsel for the plaintiffs, having invited our attention to the Government Order which entitled the plaintiffs to pay a
Court-fee of Rs. 15 in so far as the plaint relief related to the restoration of the properties belonging to a public wakf, claimed that the money claim
of Rs 14,000 was only explanatory of his main claim for possession and that in the circumstances, it was never intended to be an alternative prayer
and would, therefore, sustain that the Court-fee already paid is correct and the call for additional Court-fee is not warranted. The learned
Government Pleader would, however, state that as the plaintiffs have incidentally urged in the plaint that their right to the usufruct was disturbed
from the year 1952 and thereafter and as the money equivalent for the loss of such usufruct is claimed in the plaint, the totality of the plaint
allegations ought not to be understood as a prayer for a bare suit for recovery of possession, but as a suit based on the same cause of action, in
which two alternative reliefs are sought, one for the recovery of possession and the other in the alternative for the recovery of a sum of Rs. 14,000
which is the money equivalent of the lands and trees wrongly taken possession by the Government.
Undoubtedly there is no equity in a tax and even so in Court-fees But Courts are reluctant to adopt such an interpretation, if a favourable
interpretation is available on a reasonable understanding of the allegations in the plaint presented to a Court, against the plaintiffs in the action. The
main claim, which the plaintiffs seek for in the suit is for recovery of possession of the properties belonging to the wakf. There is no dispute that this
is a public wakf to which the concessional notification issued on 15th May, 1961 and referred to above applies. But the point is whether the
essential or primordial relief asked for in the suit is only for possession and the reference to the claim for compensation is ancillary to the primary
relief or alternative to it. The word ""ancillary"" in its grammatical sense would mean subordinate to or arising out of something else, whilst the word
''''alternative"" poses a disjunctive or a totally different relief other than the one mainly asked for in the suit. If, therefore, the relief of compensation
asked for in this suit by the plaintiff flows from the primary relief of possession, then it would be ancillary and would cease to be alternative. It is not
in dispute that only if the reliefs are alternative, the obligation to pay a higher Court-fee under Sub-section (2) of Section 6 of the Court-fees Act
would arise. But if on the same cause of action, a major relief and an ancillary relief, which is subordinate to or arising out of the main relief is
sought, then the proviso to Section 6(1) of the Court-fees Act, is immediately attracted. Section 6 refers to multifarious suits. Sub-section (1)
therein reads:
In any suit in which separate and distinct reliefs are sought based on the same cause of action, the plaint shall be chargeable with a fee on the
aggregate value of the reliefs.
The proviso is, however, apposite in the case. The proviso says that provided that, if a relief is sought only as ancillary to the main relief, the plaint
shall be chargeable only on the value of the main relief.
We have no hesitation after going through the allegations in the plaint and after hearing the submission of the learned Counsel that the main relief
asked for in this action is for restoration of possession of properties belonging to a public wakf, which according to the plaint were unfortunately
taken Over by the Government in or about 1952, 1960-61. On the basis of the allegations in the plaint, it is difficult to hold that the claim for
compensation does not flow from the main relief. If it does, the said relief can terminologically be called only as an ancillary relief and not as an
alternative relief. To adopt the picturesque language of Mookerjee, J., who explained the term ''''compensation"" in Md. Mozaharal Ahmad v. Md.
Azimaddin AIR 1923 Cal. 507. the term ""compensation"" etymologically suggests the image of balancing one thing against another and its primary
signification is equivalence and the secondary and more common meaning is something given or obtained as an equivalent. The plaintiffs in the
instant case are seeking for an equivalent in case possession of the lands are not made available to the mosque. In this sense, therefore, the claim
for compensation is only an image of the main relief for possession and, is, therefore, to be termed as an ancillary relief.
If the plaintiffs, after trial, are unable to recover possession of the lands by reason of the supervening user of the same in public interest or for
any other reason, the plaintiffs have taken the abundant precaution of claiming the image of their main relief or its equivalence there-for by asking
for compensation. That would not mean that they are seeking an alternative relief. If supposing the plaintiffs'' light is upheld after trial, but for some
reason and mostly in public interest, the Court is unable to restore possession of the properties sought, is the Court helpless? We do not think it is.
It could, having regard to the ancillary claim made in the plaint, award such money compensation which is its equivalent and to which the plaintiffs
would be entitled. In those circumstances, however, the plaintiffs cannot claim the benefit of the concession given to them under the Government
Order G. O. Ms. No. 1617 Home, dated 15th May, 1961. The above Government Order pertains to restoration of possession of properties
belonging to a public wakf. This pre-supposes a restoration of properties in specie and not the award of compensation as an equivalent. If such a
situation arises, and if the plaintiffs are granted only compensation by working out the main relief in terras of money, then it follows that the general
provision of the Court-fees Act would apply, and they are under an obligation to pay the additional Court-fee on the amount of the money claim
granted to them in case they ultimately succeed.
In this view the Court-fee paid on the plaint is in accordance with the provisions of the Court-fees Act read with the G. O. Ms. 1617 Home,
dated 15th May, 1961 and the order of the Court below which interpreted the allegations to mean that the claim for compensation is an alternative
one is not sustainable. The Lower Court shall restore the plaint to its file and set it for trial in the usual course.
The appeal is allowed, but there will be no order as to costs. It is, however, made clear that in case the plaintiffs secure a money compensation,
the Government would be entitled to the Court-fee in accordance with the ordinary provisions of the Madras Court-fees Act.