Waqf Alal Aulad v. Mohammad Jalil — 1969 DIGILAW 322 (ALL)

JUDGMENT S. N. Singh, J.-. This revision has come before us for decision on a reference made by Mr. Justice S. K. Verma. 2. The facts giving rise to the present revision are that the plaintiff applicant claiming to be the Mutawalli of Waqf Alal-aulad instituted a suit for three reliefs: Relief (a) was for the cancellation of two Theka deeds a dated 4th March, 1958 and 19th September, 1960 executed by one Hafiz Habidul Rahman in favour of the defandant in respect of the grove in dispute. Relief (b) was for the ejectment of the Thekedar from the grove land in dispute, and relief (c) was recovery of Rs. 226/- as damages for use and occupation for the last three years. The allegations made in the plaint are that the two Theka deeds were executed by the Mutawalli beyond his power, that the two Thekas could not be executed for a period more than a year and that since they were for more than a year they were null and void. The plaintiff valued the suit for the purpose of jurisdiction as follows : 1. Rs. 75/- the amount of one year's Theka rent for the purposes of relief (a) 2. Rs. 75/- the amount of one year's Theka money for relief (b) and 3. Rs. 225/- for relief (c) . Court fees were also paid on these amounts. 3. The defendant contested the suit inter alia on the grounds that the suit is under valued and that the court has no jurisdiction to try the suit. 4. A commission was issued to a vakil commissioner who reported that the value of the disputed grove was much more than, Rs. 5,000/-. Two preliminary issues were framed in the case : (1) Whether the suit is under-valued ? If so has in court no pecuniary jurisdiction to try this suit ? (2) Whether the court fee is in (Sic) The Munsif decided the issue about jurisdiction and held that the valuation of the suit for the purposes of jurisdiction could not be made on annual rental but is to be calculated in accordance with the market value of the property involved in the suit. He also held that the value of the property in dispute was more than Rs. 5,000/-. So he directed the return of the plaint for presentation to the proper court. 5. He also held that the value of the property in dispute was more than Rs. 5,000/-. So he directed the return of the plaint for presentation to the proper court. 5. An appeal was preferred against this decision and the appellate judge has also affirmed the decision of the Munsif. It has given rise to the present revision. When this revision came up for hearing it was referred to a larger Bench. We have heard learned counsel for the parties and have gone through the allegations in the plaint. We are of opinion that the plaintiff in this case has correctly valued the reliefs (b) and (c) for the purposes of jurisdiction but has erred in valuing relief (a) . This is a composite suit for cancellation of documents which is covered by Section 7 (IV-A) of the Court Fees Act and for possession by a landlord against a tenant which is covered by Section 7 (xi) (cc) of the Court Fees Act. In such a suit the relief has to be valued in accordance with the amount of rent payable for the year next before the date of presenting the plaint. The subject. matter in such a suit is not the proprietary right in the land in dispute. It is only the tenancy right which is in dispute and possession is claimed against a person who claims tenancy right in the property in dispute. It was urged on behalf of the defendant opposite party that in the instant case the plaintiff has treated the defendant as a trespasser and that accordingly this is not a suit by a landlord against a tenant but is a suit by the proprietor of the grove against the defendant trespasser. We are unable to accept this contention. On the allegations in the plaint the Thekas were undoubtedly valid for one year. So the Thekedar was in lawful possession for one year. This aspect shall not be overlooked in deciding this case. 6. In the case of Mohan Lal v. Bhuteshwar, A.I.R. 1925 Alld. sic a suit was instituted against a tenant for possession of the ground of forfeiture, treating the defendant as a trespasses. So the Thekedar was in lawful possession for one year. This aspect shall not be overlooked in deciding this case. 6. In the case of Mohan Lal v. Bhuteshwar, A.I.R. 1925 Alld. sic a suit was instituted against a tenant for possession of the ground of forfeiture, treating the defendant as a trespasses. It was held that the value of the suit for possession of the leased property on the ground of termination of tenancy by forfeiture was not the value of the property itself but the amount of rent payable for the year next before the date of the plaint. 7. In a Division Bench case of this Court in the case of Chief Inspector of Stamps, U. P. v. Sewa Sunder La1, A.I.R. 1949 Alld. 560 it was held that a suit of this type is a suit by d landlord against a tenant and should be valued at annual rent. The facts of the above case were as follows : The suit was brought by the plaintiff for the following reliefs "(a) that the order, dated 18th January, 1945, a certified copy of which is attached herewith, requiring the plaintiff to vacate rooms Nos. 7 and 8 passed by the T.R.O. be declared ultra vires, null and void. (b) that the defendant be restrained by perpetual injunction from interfering with the peaceful possession of the plaintiff over the entire portion of the shop including rooms Nos. 7 and 8 in pursuance of the orders above noted, so long as the tenancy continues and is not legally determined." The suit was for the purposes of jurisdiction at Rs. 6720/- which was said to be the market value of the portions occupied by room Nos. 7 and 8 and at Rs. 200/- for the purposes of declaration. Court fee was paid on one-tenth of Rs. 6,720/- so far as the prayer for injunction was concerned and a fixed court fee was paid on the prayer for declaration. 8. The Bench having considered the relevant provisions of the Court Fees Act observed as follows : "It seems to us, therefore, on a consideration of Section 7 (iv) (a) , 7 (v-B) and 7 (xi) that the court fee in such a suit for a consequential relief of injunction should be on one year's rent. 8. The Bench having considered the relevant provisions of the Court Fees Act observed as follows : "It seems to us, therefore, on a consideration of Section 7 (iv) (a) , 7 (v-B) and 7 (xi) that the court fee in such a suit for a consequential relief of injunction should be on one year's rent. The judgment of the court below shows that the monthly rent of the two portions in dispute was Rs. 1501-. The annual rent, therefore, comes to Rs. 1,800/- and the court fee should have been paid on this amount. The lower court has already ordered the plaintiff opposite party to pay court fee on one-tenth of Rs. 28,800/-. Under these circumstances, the court fee in any case, has been over-paid." In the case of Mohd. Ibrahim v. Ishrat Husain, A.I.R. 1952 Alld. 658 the heirs of one Qazi Saulat Husain the Zamindar and Lamberdar of a village instituted a suit for possession against the Thekedar after the expiry of the lease for his ejectment and valued the relief at Rs. 5001- the annual Theka money. It was contended before a Bench of this Court that a Thekedar not being a tenant the suit should have been valued at the market value of the property. This argument was repelled and it was held that the suit was not one for possession of land within the meaning of Scc. 7 (v) of the Court Fees but was one of the nature of Section 7 (xi) (cc) of the Court Fees Act against a tenant. 9. In Jokhu Prasad Tewari v. Smt. Bimla Devi, Decision No. 382 of 1968 the plaintiff instituted a suit for the ejectment of the defendant who claimed to be an allottee of the accommodation in dispute on the ground of the invalidity of the allotment order passed in his favour and treated the allottee as a trespasser. The plaintiff valued the relief for ejectment at one year's rental value. The defendant objected to the valuation and asserted that the valuation should be in accordance with the market value of the accommodation in dispute. The plaintiff valued the relief for ejectment at one year's rental value. The defendant objected to the valuation and asserted that the valuation should be in accordance with the market value of the accommodation in dispute. It was held by one of us (S. N. Singh, J.) as follows : "In my opinion the word 'tenant' used in Section 7 (xi) (cc) should include a person entering into occupation of an accommodation through an allotment order whether the same is valid or invalid." The authorities referred to above would clearly show that the type of suit which is before us should be treated as a suit by landlord against a tenant which is clearly covered by Section 7 (xi) (cc) of the Court Fees Act. The subject-matter of the suit in such a case is the tenancy right and not the owner's rights. If the plaintiff had claimed only reliefs (b) and (c) the valuation given by him would have been correct in accordance with the Suits Valuation Act (hereinafter called the Act) , but since he has also prayed for cancellation of the Thekas this case will fall both under Sections 4 and 8 of the Act. Relief (a) has to be valued in terms of Section 4 of the Act which reads as follows : "4. Valuation of relief in certain suits relating to land - Suits mentioned in paragraphs IV (a), IV A, IV-B, V, V-A, V-B, VI,, VI-A, VIII and X (d) of Section 7 and Articles 17, 18 and 19 of Schedule II of thee Court Fees Act, 1870, as in force for the time being in the Uttar Pradesh, shall be valued for the purposes of jurisdiction at the market value of the property involved in or affected by. or the title to which is affected by the relief sought, or of the amount involved in or affected by or the title to which is affected by the relief sought, and such value shall in the case of land be deemed to be the value as determinable in accordance with the rules framed under Section 3." Since the relief (a) is claimed in respect of land we have to look to the rubs framed under Section 3 of the Act to ascertain the jurisdictional value of the relief. A perusal of the said rules would show that the relief (a) should have been valued in terms of Rule 4 (b) which is as follows : "4. Suits for possession of superior proprietary, under-proprietary and sub-proprietary rights in land - The value of the suits for the purposes of jurisdiction in suits for possession (a) of superior proprietary rights, where under-proprietary or sub-proprietary rights exist in the land shall be twenty times the annual net profits of the superior proprietor; (b) of under-proprietary the land as such shall be twenty times the annual under-proprietary or sub proprietary rent, as the case may be, recorded in the Collector's register as payable for the land for the year next before the presentation of the plaint. If no such rent is recorded in the Collector's register, the value shall be determined by multiplying by twenty such rent for similar land for the year next. before the presentation of the plaint." 10. In view of the above rule relief (a) should have been valued at Rs. 1,500/-, twenty times of the Theka rent in this case. Reliefs (b) and (c) have been rightly valued in terms of Section 8 of the Act. 11. In view of the above discussion relief (a) for purposes of jurisdiction should have been valued at Rs. 1,500/-, relief (b) at Rs. 75/- and relief (c) at Rs. 225/-. The total valuation of the suit should have been Rs. 1,800/-. 12. Thus it is clear that the suit instituted in the instant case is well within the jurisdiction of the Munsif. The courts below erred in holding it to be beyond the jurisdiction of the Munsif. 13. Accordingly we allow this revision, set aside the orders of the courts below and direct the Munsif to proceed with the case in accordance with law after getting the necessary amendments made in the plaint in the light of the observations made above. The applicant is entitled to the cost of this revision.