Laxminarayan v. Shivnarayan — 1965 DIGILAW 98 (MP)

ORDER OF REFERENCE ( Date 3-3-1965 ) Tare, J. 1. This revision under section 115 of the Civil Procedure Code is by the plaintiffs against the order, dated, 27-10-1964, passed by Shri R. C. Jain, First Civil Judge Class II, Indore, in civil suit No. 12-A of 1963, directing the plaintiffs not only to specify the valuation of the plot of land, but also the valuation of the superstructure, which the petitioners do not claim as their own and which they want to be demolished, after which they seek possession of vacant plot of land. The defendant raised an objection about valuation with reference to Court-fees and jurisdiction. 2. The learned judge of the trial Court ordered the plaintiffs to state the ad valo em valuation of the plot, as also the super-structure standing thereon, both for the purposes of Court-fees and jurisdiction relying on the observations of my brother, Sen, J. in Nilkanth Vs. Laxman 1965 JLJ-SN 52. Hence the present revision. 3. It is to be noted that the plaintiffs claimed possession of a plot of land, which only forms a portion of land revenue paying estate. The trial judge, in my opinion, was right in directing the plaintiffs to state the market value of the plot as required by section 7 (v) (b) of the Court-fees Act and Rule 2 of the M. P. valuation of Suits Rules. The portion did not represent any share in a revenue paying estate; and as laid down by Bose, J. in Hiptulla Bhai and others Vs. Gulam Abbas Taxing Decisions of the Nagpur High Court 1936-43 page 49, if the land represents a share of a revenue paying estate, then the Court-fees payable on that share might be accepted. On the other hand, if the plot is not a share, but merely a portion or a part of land revenue paying estate, then the plaintiff will have to pay ad valoram Court-fees on the market value of the plot. To that extent, I would affirm the view of the trial judge. There can be no doubt that the petitioners were required to pay ad valoram Court-fees on the market value of the plot of which they claimed possession in the present suit. 4. However, the further question arises whether they are also required to pay court-fees on the market value of the superstructure. There can be no doubt that the petitioners were required to pay ad valoram Court-fees on the market value of the plot of which they claimed possession in the present suit. 4. However, the further question arises whether they are also required to pay court-fees on the market value of the superstructure. In this connection, I may observe that the plaintiffs claimed relief regarding vacant possession of the plot after demolition of the super-structure. They do not claim ownership in or possession of the superstructure. 5. As regards this aspect, the trial judge relied on the observations of Sen, J. in Nilkanth Vs. Laxman (supra). Upon a perusal of the reasoning of my learned brother in the said case, I regret that I am unable agree with the conclusions arrived at by him. 6. In the said case, reliance has been placed mainly on the observation of Bose, C. J. in Gajanan Nanaji and others Vs. Rajeshwar Krishnaji and others ILR 1950 Nag 432. I may point out that the question raised in that case was one of jurisdiction, as also Court-fees. The suit was clearly for possession of a portion of a house which meant not only the land, but also the super-structure standing thereon. It was under those circumstances that Bose, C.J. held that the plaintiffs were required to value not only the land, but also the super-structure of which possession was being claimed. 7. At this stage, I may also refer to the observations of V. R. Sen, J. in Hiralal Vs. Nilkanth Civil Revision No. 14 of 1951, dated 18-12-1951=1953 NLJ Notes of Cases Note No. 64, wherein the learned judge, relying on the observations of Bose J. in Hiptulla Bhai and others Vs. Gulam Abbas and others (supra), Taxing Decisions of the Nagpur High Court 1936-43 page 49 held that if a plaintiff wanted possession of vacant land after demolition of the superstructure, he was not required to pay Court-fees on value of the superstructure, but only on the value of the vacant plot of land. 8. To the same effect was the view expressed by a Division Bench of the Allahabad High Court presided over by Desai and Beg, J. in Abdul Ghani Vs. Vishunath AIR 1957 All, 337. That case was also a case for possession of land after demolition of the superstructure. 8. To the same effect was the view expressed by a Division Bench of the Allahabad High Court presided over by Desai and Beg, J. in Abdul Ghani Vs. Vishunath AIR 1957 All, 337. That case was also a case for possession of land after demolition of the superstructure. The question had to be considered by the learned judges of the Division Bench not only for the purposes of Court-fees, but also for the purposes of jurisdiction as per the provisions of the Suits Valuation Act, 1887. However, the said Division Bench case was overruled by a Full Bench of the Allahabad High Court in Shanti Prasad and others Vs. Mahabir Singh and others AIR 1957 Allah. 402, so far as the question of valuation regarding jurisdiction was concerned. In view of the special provisions made in sections 3 and 4 of the Suits Valuation Act as amended and rule 3 of the U. P. Suits Valuation Rules, 1942, the Full Bench laid down that although a plaintiff may claim possession of a vacant plot of land after demolition of the superstructure, he would be required to include in his claim the valuation of the superstructure for the purposes of jurisdiction, though not for the purposes of Court-fees; because such superstructure, although not claimed would be affected by the relief sought by the plaintiff. Therefore, it was in the light of the special wording of rule 3 of the U. P. Suits Valuation Rules 1942 that the Full Bench overruled the view of the Division Bench in Abdul Ghani Vs. Vishunath AIR 1959 Pun 181, in the matter of valuation for the purposes of jurisdiction. It is further pertinent to note that the Full Bench affirmed the view of the Division Bench about valuation for the purposes of Court-fees. Therefore, this Full Bench case would also be an authority for the proposition that where a plaintiff claims a vacant possession of a plot of land after demolition of a superstructure, he is required to state the valuation of the plot only for the purposes of Court-fees, and he is not at all required to pay Court- fees on the valuation of the superstructure which he wants to be demolished. As such I find that the view pronounced by my learned brother in Nilkanth Vs. As such I find that the view pronounced by my learned brother in Nilkanth Vs. Laxman (supra) is in conflict not only with the view of V. R. Sen, J. in Hiralal Vs. Nilkanth (supra), but also the Division Bench case and the Full Bench cases of the Allahabad High Court mentioned above. 9. It would not be out of place to refer to some other decisions of other High Courts. I may refer to the observations of a Division Bench of the Punjab High Court in Kewalkishore Vs. Hamad Ahmad Khan and others AIR 1957 All, 337, wherein possession was claimed of a portion of the land after demolition of the superstructure raised by the alienees. The learned judges held that the defence could not dictate to the plaintiff to include in his relief clause the valuation of the superstructure. 10. To the same effect are the observations of Sanjeeva Row Nayudu, J. in Andgulapati Narashimha and others Vs. Abbaraju Chenchamma and others AIR 1962 AP 408 , wherein the learned judge laid down that if possession was claimed of a revenue paying estate, a plaintiff need only pay Court-fees on the basis of valuation as per section 7 (v) (b) of the Court-fees Act and need not pay on the market value of the house site. Evidently, that principle will he applicable where the entire or a share of a revenue paying estate is claimed. That will not be applicable where only a part or a portion of a revenue paying estate is claimed. In that event, the principle as lain down by Bose, J. in Hiptullah Bhai and others Vs. Gulam Abbas and others (supra) will be attracted. Sanjeeva Row Nayadu, J. also expressed the opinion that if a plaintiff claims possession after demolition of the superstructure, he need not value the superstructure for the purposes of the Court-fees. 11. Thus the trend of decisions not only in this Court, but also in other High Courts is that at least for the purposes of Court-fees, a plaintiff is not required to value the superstructure, if he claims mere possession after demolition of the superstructure. This distinction was probably not brought to the notice of my learned brother, Sen, J. while deciding the case of Nilkanth Vs. Laxman (supra). This distinction was probably not brought to the notice of my learned brother, Sen, J. while deciding the case of Nilkanth Vs. Laxman (supra). I have already given reasons as to how this case is clearly distinguishable from the case Gajanan Nanaji and others Vs. Rajeshwar Krishnaji and others (supra). 12. So far as sections 3 and 4 of the Suits Valuation Act. 1887 as applicable to Madhya Pradesh are concerned the position would be altogether different from the one existing in Uttar Pradesh. In view of the provisions that are applicable in the State the view as laid down by a Full Bench of the Allahabad High Court in Shanti Prasad and others Vs. Mahabir Singh and others (supra) will be in applicable to the State in the matter of valuing a suit for the purposes of jurisdiction. Therefore, I am clearly of opinion that the order of the trial judge directing the plaintiffs to state the valuation of the suit claim for purposes of Court-fees and jurisdiction with reference not only to the vacant plot, but also the superstructure cannot be sustained in law. 13. In order to avoid any conflict of decisions, I would direct that the present case be placed before my Lord the Chief Justice for resolving the conflict between the views expressed by V. R. Sen, J. in Hiralal Vs. Nilkanth (supra) and my brother, S. B. Sen, J. in Nilkanth Vs. Laxman (supra) by constitution of a larger Bench for consideration of the following questions:- (i) Whether a plaintiff suing for vacant possession of a plot of land after demolition of the superstructure is required to value the claim for purposes of Court-fees and jurisdiction with reference to the value of the plot only, or he should include in his claim the value of the superstructure as well. (ii) Whether the view as pronounced in Hiralal Vs. Nilkanth (supra) or in Nilkanth Vs. Laxman (supra) is in accord with the provisions of section 7 (v)(b) of the Court-fees Act and sections 3 and 4 of the Suits Valuation Act, 1887 read with the Madhya Pradesh Rules framed thereunder. Let this case be placed before my Lord the Chief Justice for consideration of the questions by a larger Bench. OPINION OF THE DB ( Date 26-4-1965 ) Dixit, C. J. & K. L. Pandey, J –1. Let this case be placed before my Lord the Chief Justice for consideration of the questions by a larger Bench. OPINION OF THE DB ( Date 26-4-1965 ) Dixit, C. J. & K. L. Pandey, J –1. This case comes before us on a reference made by Tare J. for resolving the disharmony between Hiralal Vs. Nilkanth (Civil Revision No. 14 of 1951 dated 18 December 1951 decided by V. R. Sen, J.) and Nilkanth Vs. Laxman (Civil Revision No. 399 of 1963 dated 19 December 1963 by S.B. Sen, J,). The questions which Tare, J. had formulated for our consideration are :– (i) Whether a plaintiff suing for vacant possession of a plot of land after demolition of the superstructure is required to value the claim for purposes of Court-fee and jurisdiction with reference to the value of that plot only or he should include in his claim the value of the superstructure as well ? (ii) Whether the view as pronounced in Hiralal Vs. Nilkanth (supra) or in Nilkanth Vs. Laxman (supra) is in accord with the provisions of section 7 (v) (b) of the Court-fees Act and sections 3 and 4 of the Suits Valuation Act, 1887, read with the Madhya Pradesh Rules framed thereunder? 2. The facts of the case, briefly stated, are these. The applicants filed a suit for vacant possession of S. No. 891 area 0.27 acre after demolition of the structures standing thereon and also for a permanent injunction to restrain the non-applicant from interfering with their possession. They valued the relief of possession at twenty times the rent of S. No. 891 which came to Rs.27-and the relief of permanent injunction at Rs.200. Relying upon Nilkanth Vs. Laxman (supra), the Court of first instance directed the applicants to value the relief of possession by including therein the value of the land as well as that of the structures standing thereon. Being aggrieved by that order, the applicants preferred a revision. Since V. R. Sen, J. had held here the earlier case, Hiralal Vs. Nilkanth (supra), that in a case like the one here the value of the structure could not be taken into consideration for determining the Court-fee payable, Tare, J. has made this reference. 3. Having heard the counsel, we have formed the opinion that the view taken by V. R. Sen, J. in Hiralal Vs. Nilkanth (supra) is correct. Nilkanth (supra), that in a case like the one here the value of the structure could not be taken into consideration for determining the Court-fee payable, Tare, J. has made this reference. 3. Having heard the counsel, we have formed the opinion that the view taken by V. R. Sen, J. in Hiralal Vs. Nilkanth (supra) is correct. So far as the question of computation of Court-fee is concerned, it is governed by paragraph (v) of section 7 of the Court-fees Act, 1870, which reads as under : "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 :-- (b) 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 foresaid; 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 profit have arisen from the land during the year next before the date or presenting the plaint-fifteen times such net profits; but where no such net profits have arisen there from the amount at which the Court shall estimate the land with reference to the value of similar land in the neighborhood; (d) 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: Provided that, in the territories subject to the Governor of Bombay in Council the value of the land shall be deemed to be :-- (1) where the land is held on Settlement for a period not exceeding thirty years and pays the full assessment to Government a sum equal to five times the survey-assessment; (2) where the land is held on a permanent, settlement, or on a settlement for any period exceeding thirty years, and pays the full assessment to Government a sum equal to ten times the survey assessment; and (c) where the whole or any part of the annual survey assessment is remitted a sum computed under paragraph (1) or paragraph (2) of this proviso, as the case may be, in addition to ten times the assessment, or the portion of assessment, so remitted. 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 to Government, or which, in the absence of such engagement, shall have been separately assessed with revenue; (ii) any land held by a person deemed to be a ten an of State under sections 45 and 59 of the Madhya Pradesh Abolition of proprietary Rights (Estate, Mahals, Alienated Lands) Act, 1950 or a person deemed to be a lessee from the State under sub-section (2) of section 68 of the Madhya Pradesh Abolition of proprietary Rights (Estates, Mahals Alienated Lands) Act, 1950, and any reference to revenue in this paragraph shall, in such cases, be deemed to a reference to the rent or lease-money payable to the State Government in respect of such land; (e) Where the subject matter is a house or garden according to the market value of the house or garden." No doubt, the word land in its wider significance includes not only the surface of the ground but also everything on or under it but, in the provisions reproduced above, it is used in a restricted sense because they prescribe a distinct mode of ascertaining the amount at which the relief should be valued according as the subject matter of the suit is land or a house or a garden. If the subject matter of the suit is land, there are two modes of computation according as the land is revenue paying or not. On the other hand, if it is a house or garden, another distinct mode of computation is provided. It would thus appear that the word land is used in contra-distinction to a house or a garden. Therefore, when the claim is one for possession of a house or a garden standing on revenue paying land, it cannot be regarded as one for the land alone within the meaning of section 7 (v) (b) of the Act: Hiptulla Bhai Vs. Gulam Abbas Taxing Decisions (1936-43) p. 49. A house includes the site on which it stands and also its appurtenances. The fact that the land on which it stands is revenue paying does not affect the computation of the Court-fee chargeable. Gulam Abbas Taxing Decisions (1936-43) p. 49. A house includes the site on which it stands and also its appurtenances. The fact that the land on which it stands is revenue paying does not affect the computation of the Court-fee chargeable. But whether the suit is for recovery of the house or the land on which it stands falls to be determined by ascertaining what in substance the subject matter of the suit is. Where the claim is confined to the land, of which possession is sought after demolition the buildings erected on it, it is in substance one for possession of land. Long age, the matter was considered in Jugal Kishor Vs. Tale Singh ILR 4 Allah. 320 by a Full Bench constituted by Stuart C.J., Straight, Oldfield, Brodhuist and Tyrell, JJ. and it was held that the value of the buildings which have to be demolished should not be taken into account. Oldfield, J. pointed out that the subject matter or the relief sought was the restoration of plaintiffs' possession over his land which the defendant had taken from him. There was also a further sub-relief incidental to, re-possession, namely, the removal of the buildings made by the defendant on his pretended title. The same view was taken in Durga Das Vs. Nihal Chand AIR 1928 Lahore 852, Hiralal Vs. Nilkanth (supra), Abdul Ghani Vi. Vishunath AIR 1957 Allah. 337, Shanti Prasad Vs. Mahabir Singh AIR 1957 All. 402 (FB), Kewal Kishore Vs. Hamad Ahmad Khan AIR 1959 Pun 181 and Narasimha Rao Vs. A. Chenchamma AIR 1962 AP 408 . 4. For the contrary view taken in Nilkanth Vs. Laxman (supra), S. B. Sen, J. relied upon certain observations made in Hiptulla Bhai Vs. Gulam Abbas (supra) and Gajanan Vs. Rajeshwar ILR 1950 Nag. 432. In our opinion, those observations, which were made in relation to claims involving possession of buildings, do not support that view. We do not also agree with the view that, when the structure on the land has got to be removed or demolished, it ceases to be a claim for possession of land. As pointed out by Oldfield, J. in the case of Jugal Kishor Vs. Tale Singh (supra), there is in such cases a sub-relief of demolition of the structure. We do not also agree with the view that, when the structure on the land has got to be removed or demolished, it ceases to be a claim for possession of land. As pointed out by Oldfield, J. in the case of Jugal Kishor Vs. Tale Singh (supra), there is in such cases a sub-relief of demolition of the structure. Needless to say that this sub-relief has to he valued separately and it has no bearing on the question of computation of Court-fee payable on the main relief of vacant possession of land. In view of the rules made by the State Government under section 3 of the Suits Valuation Act, 1887, the valuation of the land, of which possession is claimed, for purposes of Court-fee and pecuniary jurisdiction is the same. 5. Having regard to what we have stated in the foregoing paragraph, we would answer the two questions in this way : (i) So far as the relief of vacant possession of the plot of land is concerned, the value of the structure standing thereon, which have to be demolished, should not be taken into account, However, the sub-relief of demolition of the structure has to be valued separately. (ii) The view taken by V. R. Sen, J. in Hiralal Vs. Nilkanth (supra) is, and the one taken by S. B. Sen, J. in Nilkanth Vs. Laxman (supra) is not, correct and in accord with the relevant enactments. ORDER Tare, J.–6. The petitioners filed a suit for possession of a plot of land after demolition of the superstructure belonging to the respondent. The petitioners had merely put the price of the land on the basis of land revenue. The learned Judge of the trial Court held that as the petitioners were claiming not a share, but a portion of land revenue paying estate, they were required to pay Court-fees ad valorem on the market value of the portion of the land. In addition, they were also required to pay Court-fees on the value of the superstructure which the petitioners did not claim to be their own and which they wanted to be demolished or to be removed by the respondent. The present revision is directed against that order. 7. On a previous occasion, this case came up before me for hearing when by order, dated, 3-3-1965, I upheld the order of the trial judge demanding. The present revision is directed against that order. 7. On a previous occasion, this case came up before me for hearing when by order, dated, 3-3-1965, I upheld the order of the trial judge demanding. Court fees ad valorem on the market value of the portion of land assessed to land revenue. That order was based on the observations of Bose J. in Hiptulla Bhai and others. Vs. Gulam Abbas Taxing Decisions of the Nagpur High Court 1936-43 p. 49, which has been the recognised view of this Court. However, in view of the conflict of views as expressed by S. B. Sen, J. in Nilkanth Vs. Laxman 1965 JLJ-SN 52 and V. R. Sen, J. in Hiralal Vs. Nilkanth Civil Revision No. 14 of 1951, dated 18-12-1951=1953 NLJ Notes of Cases Note No 64., I had referred two questions for consideration by a larger Bench. 8. Their Lordships constituting the Division Bench have answered the two questions as follows:– "(i) So far as the relief of vacant possession of the pot of land is concerned, the value of the structure standing thereon, which have to be demolished, should not be taken in to account. However, the sub-relief of demolition of the structure has to be valued separately. (ii) The view taken by V. R. Sen, J. in Hiralal Vs. Nilkanth (supra) is, and the one taken by S. B. Sen, J. in Nilkanth Vs. Laxman (supra) is not, correct and in accord with the relevant enactments.” 9. In view of the answers given by the Division Bench, it is necessary to set aside that part of the order of the trial judge, which requires the petitioners to value the superstructure for the purpose of Court-fees. The order of the trial judge so far as it relates to payment of Court-fees on the market value of a part of the land revenue paying estate on the basis of Hiptulla Bhai and other Vs. Gulam Abbas (supra) is concerned, it is upheld. The petitioners will, therefore, be required to pay Court-fees on the ad valorem market value of the portion of the land of which they claim possession. In addition, they will be required to value the sub-relief of demolition, which in most of cases might be on the basis of the probable costs of demolition. The petitioners will, therefore, be required to pay Court-fees on the ad valorem market value of the portion of the land of which they claim possession. In addition, they will be required to value the sub-relief of demolition, which in most of cases might be on the basis of the probable costs of demolition. Therefore, as directed by the Division Bench, the petitioners shall be required to State that valuation and pay Court-fees on that amount in addition to the market value of a portion of the plot of land. 10. The learned counsel for the respondent suggested that the sub-relief of demolition of superstructure ought to be valued on the price or the market value of the superstructure. That suggestion can in no case be accepted for the simple reason that the plaintiffs cannot be forced to purchase a superstructure, which they want to be demolished. The superstructure, undoubted by in the present case belongs to the defendant-respondent. Therefore, its price or the market value cannot be the criterion for valuing the sub-relief of demolition. That valuation will necessarily be with reference to the probable costs that may be required for demolition. In the first instance, it would be for the plaintiffs to state their own valuation regarding the probable costs of demolition. The Court can always interfere with the plaintiffs valuation as laid down by a Full Bench of the Nagpur High Court in Motiram and others Vs. Daulat and another 24 MPLC 255=ILR 1938 Nag. 558, if it finds that the valuation put by the plaintiff is arbitrary or wholly inadequate or excessive. Otherwise, the Court might accept the plaintiff's valuation in such matters. 11. As a result of the discussion aforesaid, this revision substantially succeeds and is allowed as indicated. Under the circumstances, the petitioners shall be entitled to half of their costs in this Court including the Division Bench, Counsel's fee before the Single Bench shall be Rs. 25, if certified, while before the Division Bench Rs. 50, if already certified.