J.H. Bhatia, J.@mdashRule. Rule returnable forthwith. Heard the Learned Counsel for the parties.
2. The petitioner before this Court is the original defendant No. 1, who has challenged the valuation of the suit for the purpose of payment of Court fees. The respondent Nos. 1 and 2 in the petition are the original plaintiff Nos. 1 and 2. Respondent Nos. 3 and 4 are sons of respondent No. 1 and they were impleaded as defendant Nos. 2 and 3 in the suit as they were not available to sign the plaint at that time. Respondent No. 2 is wife of the respondent No. 1. According to the plaintiffs they held 1/3rd share in the suit property bearing CTS No. 1332 having total area of 1905 sq. mtrs. on which one old dwelling house consisting of ground and first floor having structure of about 675 sq. mtrs. was standing. The remaining 2/3rd share in the said property was held by the other relatives belonging to Natu family. Partition had never taken place and thus, the plaintiffs had 1/3rd undivided share in the said property. The defendant No. 1 had got executed sale deeds from the shareholders of remaining 2/3rd share earlier without putting the property to partition. Thereafter, he by using threats, coercion and force, got the sale deed of remaining 1/3rd share executed by the plaintiffs and their sons on 10.3.2008 and with help of goondas and anti-social elements, he took forcible possession of the suit property. The plaintiffs filed Suit No. 1132 of 2009 with several prayers. Prayer (a) was to declare the sale deed dated 10.3.2008 executed by the plaintiff and defendant Nos. 2 and 3 in favour of defendant No. 1 as illegal, null and void. Prayer Clauses (b) and (c) read thus:
b) The Defendant No. 1 may be directed to give actual, physical possession of the suit land mentioned in para 1 of the plaint to the plaintiffs after demolishing/removing any construction or work made by him on the suit land and be directed to provide construction/building on the suit land admeasuring 200 sq. mtrs. Carpet area after getting building plan sanctioned from Pune Municipal Corporation.
c) The defendant No. 1 may be directed to pay to the plaintiffs Rs. 15,80,000/- by way of damages as mentioned in Para 55 of the plaint.
By prayers (d) and (e), he sought future future mesne profits and damages. By prayer Clause (f), the plaintiff sought perpetual injunction against the defendant No. 1. The suit was valued for the purpose of declaration of the sale deed as null and void and for possession at Rs. 1,25,00,000/-, for compensation at Rs. 15,80,000/- and for permanent injunction at Rs. 1,000/- and accordingly the court fees was paid.
3. The defendant No. 1 raised objection to the valuation. According to him, the consideration of the sale deed dated 10.3.2008 was Rs. 1,25,00,000/-. However, the plaintiffs were also seeking possession of the complete property, including the 2/3rd share sold by the other shareholders in the property. That 2/3rd share was also required to be valued at market value and the suit has to be valued and Court fees has to be paid on the basis of the value of the complete property. After hearing the parties, the learned trial Court rejected the application filed by the defendant No. 1 holding that the suit has been properly valued in view of 1/3rd share of the plaintiffs in the suit property and that value of the 1/3rd share was Rs. 1,25,00,000/-. The defendant No. 1 has challenged that order in the present Writ Petition.
4. The Learned Counsel for the defendant No. 1/petitioner also contended that when the suit is filed for possession of land, house and garden, the valuation has to be made as per Section 6(v) of the Bombay Court-fees Act, 1959 (the Act) and this valuation must be the market value of the house and garden. On the other hand, Mr. Godbole, Learned Counsel for the respondent No. 1 contended that as far as the suit for declaration that the sale deed is null and void, the valuation has to be made as per the provisions of Section 6(iv)(ha) of the Act, but as far as the possession is concerned, if the property is house and garden, then only the valuation has to be made as per market value, but if it is land assessed to revenue, the valuation has to be made on the basis of the land revenue which the land would fetch in view of the provisions in Clauses (a), (b) and (c) in Section 6(v) of the Act. Section 6(v) reads as follows:
6(v) 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 a house or garden - according to the market value of the house or garden and where the subject-matter is land, and-
(a) 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 [forty times] the survey assessment;
(b) 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 [eighty times] the survey assessment; and
(c) where the whole or any part of the annual survey assessment is remitted - a sum computed under sub-paragraph (a) or sub-paragraph (b), as the case may be, in addition to [eighty times] the assessment or the portion of assessment so remitted;
5. In support of the contention, the Learned Counsel for the respondent No. 1 relied upon
4. It appears that according to the view of the High Court the court-fee is payable u/s 6(i)(v) even with regard to land on its value which, according to the Counsel for the State, would be the market-value. In our judgment Section 6(i)(v) does not admit of any such method of calculating the court-fee where the subject-matter is land. There is no doubt that where the subject-matter is a house or a garden in a suit for possession the court-fee has to be paid according the market value of the house or garden but where the subject-matter is land the court-fee has to be calculated according to what has been provided in the Sub-clauses (a), (b) and (c) with regard to different categories of land. It may be that in Clause (v) the land which has not been assessed to land revenue is not covered by Sub-clauses (a), (b) and (c) but then the court-fee will have to be calculated under some other provision of the Act but not on the basis of the value of the land.
5. If there is any lacuna in the Bombay Act that will not justify the court in straining the language of Clause (v) and reading it in such a way that if the land does not fall within Sub-clauses (a), (b) and (c) mentioned therein it must be valued in the same way as a house or a garden and court-fee should be paid on that value. If, however, it is found that the land underneath the tank is assessed to land revenue then there is no difficulty and the court-fee has to be calculated in accordance with the provisions of Section 6(i)(v). But if the court-fee cannot be determined under that provision it will be for the Trial Court to decide, under which provision court-fee is payable and the appellant shall be required to pay that amount of court-fee which is payable under the appropriate provision.
In view of the legal position settled by the Supreme Court, there remains no doubt that if the land assessed to revenue is subject matter of suit for possession, the valuation of the suit has to be made as per the provisions of Section 6(v) (a), (b) or (c) as may be relevant. For this purpose, it will be necessary to look to the facts of the case leading to the suit and pleadings in the plaint.
6. It may be noted that earlier the respondent No. 1 had filed Special Civil Suit No. 330 of 2008 which was withdrawn in view of settlement between the parties. That suit was also for same property. The property was described as the City Survey No. 1332 and 1332-A having total area of 1905 sq. mtrs. along with old dwelling house standing thereon, consisting of ground and first floor. The plaintiff/respondent No. 1 claimed that he had 8.33% share through his father and 25% share on the basis of a Will of one Laxman Natu. In para 6 of that plaint, it was stated that "the suit property is a residential house of members of the family of Plaintiff. In para 10 of that plaint, it was mentioned that the plaintiff was initially occupying two rooms and later on he had got possession of four more rooms on the basis of Will executed by Laxman Natu. In the plaint, it was clearly stated that in view of the provisions of Section 44 of the Transfer of Property Act, transferee of undivided share in a dwelling house is not entitled to joint possession of the undivided property. In prayer Clause (b) in para 17 of that plaint, it was stated that the suit property is in the form of dwelling house and surrounding premises. That suit was, as stated earlier, withdrawn.
7. It is contended that, the defendant No. 1 had forcibly obtained sale deed dated 10.3.2008 executed by the plaintiff and his two sons. In Suit No. 1132/2009, out of which this petition arises, same description of the property is given and it is shown as old dwelling house consisting of ground plus one floor. In para 8 of the plaint, the relevant portion of the Will executed by Laxman Natu is quoted. That clearly shows that said Laxman had bequeathed his share in favour of the respondent No. 1 in the house and garden surrounding that house. The plaintiffs also pleaded that the old house was demolished by the defendant No. 1 and therefore he should be directed to reconstruct the house and put the plaintiff in possession of the same. In the Will, Laxman Natu had desired that the garden should be continued to be maintained even after his death. In the plaint, nowhere it was mentioned that land is assessed to land revenue and the value of the suit was made on the basis of the said land revenue u/s 6(v) Clauses (a), (b) or (c). The Learned Counsel for the respondents contended that the valuation of the suit in respect of the land could be made in Clauses (a), (b) or (c) of Section 6(v). Taking into consideration the pleading of the plaintiffs, Clauses (a) (b) and (c), cannot be invoked. As per pleadings, the suit property is House and garden around the same and therefore, the suit has to be valued for the purpose of possession at the market value u/s 6(v) of the Act.
8. In view of the sale deed dated 10.3.2008, it is clear that from the value of the 1/3rd share was Rs. 1,25,00,000/-. As far as the suit for declaration that the sale deed is illegal would be valued u/s 6(v)(ha) and half of ad-valorem has to be paid, but when the possession is sought, the valuation has to be made u/s 6(v) and ad-valorem Court fee has to be paid. If the plaintiffs would be seeking possession of their 1/3rd share in the property, there would be no problem because they have valued the suit for the purpose of declaration and possession at Rs. 1,25,00,000/- and the Court fees has been paid accordingly. Court fees is also separately paid for the claim of damages. However, in the present suit, as per prayers (b) and (c), the plaintiff sought possession of the complete house and not their 1/3rd share in the property. Therefore, the suit will have to be valued at the market value of the complete house. The trial Court observed that Court fee has been paid on 1/3rd share and the property is a joint family property and the plaintiffs cannot claim more than their 1/3rd share and therefore they are required to pay Court fee only to the extent of 1/3rd share. I am unable to agree with the observations of the trial Court in this respect because the plaintiffs have claimed possession of complete house and not only 1/3rd share. Therefore, they have to pay Court fee for the complete house as per its market value u/s 6(v) of the Act.
9. For the aforesaid reasons, the Writ petition is allowed. The impugned order is set aside. The plaintiff shall make valuation of the property on the basis of the market value of the complete house of which they have sought possession and pay the Court fee accordingly. However, the plaintiff shall be at liberty to make appropriate amendment in the plaint so that they may claim possession of their 1/3rd share and if such amendment is made, the Court fee will have to be paid accordingly.
