Andhra HC (Pre-Telangana)
Mir Jaffer Ali vs Syed Rabbani And Anr. on 4 September, 1993
Equivalent citations: 1993(3)ALT554
ORDER Bhaskar Rao, J.
1. The plaintiff filed this revision against the order of the lower Court dated 1-3-1993 in unregistered O.S. in C.F.R.No. 90 of 1993.
2. The facts of the case are that the petitioner herein filed the suit for confirmation of possession and injunction of the suit land claiming that he is in possession of the land and others are trying to interfere. He paid the Court fee under the residuary provision i.e., under Section 47 (iv) of the A.P. Court Fees and Suits Valuation Act, 1956 (hereinafter called as the Act VII of 1956). The office of the Lower Court has taken objection that the suit has to be valued under Section 24 (b) of tine Act VII of 1956 and the valuation made by the plaintiff and Court fee paid under Section 47(iv) of the Act VII of 1956 is not correct and returned the bundle for payment of proper Court fee. Then the matter came up before the lower Court and the lower Court passed the order under revision that there is no mere relief of confirmation of possession in the Specific Relief Act and directed the plaintiff to value the suit on half of the market value of the subject matter under Section 24(b) of the Act VII of 1956 and pay Court fee accordingly, within ten days. The Lower Court also held that since the allegations made in the plaint show that the defendants are denying the title of the plaintiff, the plaintiff has to value the suit as suit for declaration and directed to pay Court-fee as stated above. That order is challenged in this revision.
3. The learned Counsel for the petitioner contended that the relief sought for in the plaint is confirmation of possession and injunction, that the relief of injunction is ancillary relief and the confirmation of possession is main relief, that the Act VII of 1956 did not provide for the valuation of suits of confirmation of possession, that the residuary provision i.e., Section 47 of the Act applies, that the petitioner accordingly paid the Court fee valuing the suit land as more than Rs. 10,000/- and paid Court fee of Rs. 300/- which is correct and legal and that the lower Court erred in directing the petitioner to pay the Court fee under Section 24(b) of the Act VII of 1956 treating the suit as one for declaration.
4. The learned Counsel appearing for the respondents-defendants contended that though the suit is filed for confirmation of possession and injunction, but the averments made in the plaint clearly show that the defendants have denied the title of the plaintiff, that it is deemed for all purposes that it is a suit for declaration of title and the Court fee has to paid under Section 24 (b) of the Act VII of 1956, that the Court below has rightly returned the plaint for payment of proper Court fee and that the revision is liable to be dismissed as there are no merits in it.
5. In view of the above said contentions, the important question of law that arises for consideration is when the confirmation of possession is the main relief, under what provision of the Act VII of 1956 the suit has to be valued?
6. There is no dispute that the suit is filed for confirmation of possession and injunction of the suit land. There is no prevision for payment of Court fee in respect of suits for confirmation of possession as provided for the suits for declaration, suits for possession, suits for injunction, etc.
7. To appreciate the contentions of both sides, it is relevant to refer to the provisions of the Act VII of 1956. Section 10 of the Act VII of 1956 says that in every suit in which the fee payable under this Act on the plaints depends on the market value of the subject-matter of the suit and the plaintiff shall file the plaint along with a statement in the prescribed form with regard to particulars of the subject matter of the suit and his valuation thereof unless such particulars and the valuation are contained in the plaint. Section 11 says that the Court before registering the plaint decide on the allegations contained in the plaint and on the materials furnished by the plaintiff the proper fee payable thereon. Section 21 says that the subject to other provisions of this Act, in a suit relating to immovable property, fee shall be computed on three-fourths of the market value of the property. Section 24 deals with the computation of fee in respect of suits for declaration. Clause (a) of Section 24 says that where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the movable property or three-fourths of the market value of the immovable property or on Rs. 300/-, whichever is higher. Clause (b) of Section 24 provides that where the prayer is for declaration and for consequential injunction with reference to any immovable property, the fee shall be computed on one-half of the market value of the property or on rupees three hundred, whichever is higher. Section 26 deals with the computation of fee in respect of suits for injunction. Clause (a) of Section 26 says that where the relief sought relates to any immovable property and the plaintiff's title is denied, the fee shall be computed on one-half of the market value of the property or on rupees two hundred, whichever is higher. Clause (c) of Section 26 provides that in any other case, whether the subject-matter of the suit has a market value or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or at which such relief is valued by the Court, whichever is higher. Section 27 deals with the computation of fee in respect of suits relating to trust property. Section 28 deals with the computation of fee in respect of suits for possession under the Specific Relief Act, 1877 and provides that the fee shall be computed on one-half of the market value of the property or on rupees two hundred, whichever is higher, in a suit for possession of immovable property under Section 9 of the Specific Relief Act. Section 29 says that in a suit for possession of immovable property not otherwise provided for, fee shall be computed on three-fourths of the market-value of the property or on rupees three hundred, whichever is higher. Section 47 of the Act VII of 1956 deals with the computation of fee in respect of suits not otherwise provided for. It reads as under:
"47. Suits not otherwise provided for:- In suits not otherwise provided for, fee shall be payable at the following rates:-
When the amount or value of the subject-matter in dispute
(i) is less than Rs. 3,000/- ... Rupees Fifty,
(ii) is not less than Rs. 3,000/- but ... Rupees one does not exceed Rs. 5,000/-. hundred,
(iii)exceeds Rs. 5,000/-but does ... Rupees two not exceed Rs. 10,000/- hundred,
(iv) exceeds Rs. 10,000/- ... Rupees three hundred.& "
8. Thus, under the scheme of the Act VII of 1956, the valuation of the suits for the purposes of payment of Court fee is provided for differently against all suits i.e., suit for declaration, suit for possession, suit for injunction, etc. In the present case, the suit is filed for confirmation of possession and injunction. It is not a suit for declaration of title and injunction or it is not a suit for mere injunction or it is not a suit for possession and injunction or mere possession. Thus, the provisions of Section 24 (a) and (b), the provision for payment of Court fee in respect of suit for injunction and possession are not applicable. But, Section 21 of the Act provides that subject to other provisions of the Act, in a suit relating to immovable property, fee shall be computed on three-fourths of the market value of the property. By reading Section 24 (a) and (b), Section 26 and Section 29 together, it is clear that the provision with respect to payment of Court fee in suit for confirmation of possession is Section 21 to determine the market value of the property. The words "subject to other provisions of the Act" occurring at the beginning of Section 21 means that the method of valuation stated in the other provisions of the Act with respect to immovable property must be taken into consideration. If there is no provision or the said provisions are not applicable, then Section 21 comes into play for payment of Court fee in respect of suits not provided for in other sections. Therefore, Section 21 applies for payment of Court fee in the present case. Even accepting the contention of the petitioner that the suit is filed for confirmation of possession but not for declaration of possession and Court fee has to be paid only on the relief of confirmation of possession, the suit has to be valued as provided for under Section 21 of the Act VII of 1956.
9. The learned Counsel for the petitioner contended that the words 'subject to other provisions of the Act' provided in Section 21 means, in case the provisions provided for payment of Court fee in respect of immovable property are not applicable, then Section 47 applies and when Section 47 does not apply then only Section 21 comes into play. I am unable to agree with the said contention. Section 47 is a residuary provision. Section 47 says that in suits not otherwise provided for the fee shall be computed at the rates mentioned therein. Reading of Sections 21, 24(a) and (b), 26, 29 and 47 of the Act together makes it clear that the residuary section applies only if the method of valuation is not provided for in the above provisions. As the method of valuation is not provided under Sections 24 (a) and (b), 26 and 29, then the suit has to be valued according to Section 21 of the Act. Where Section 21 is not applicable, then the provision of Section 47 applies as it being a residuary clause. When Sections 21 and 47 are compared; Section 21 says that subject to other provisions of the Act in a suit relating to immovable property, fee shall be computed on three-fourths of the market value of the property. Thus, the Section 21 is residuary provision for suits relating to immovable property; whereas Section 47 says that in suits not otherwise provided for, the fee shall be computed at the rates mentioned therein, i.e., not provided for in the Act itself and it covers both movable and immovable property. Section 21 applies to suits relating immovable property, whereas Section 47 applies to suits relating to both the movable and immovable properties. Section 21 can be taken as a residuary provision concerning valuation of immovable property. If Section 21 is not applicable for valuation for the purpose of payment of Court fee, then the suit has to be valued under Section 47.
10. The learned Counsel for the petitioner contended that the observation of the lower Court that the suit for confirmation of possession is not provided for in the Specific Relief Act and the petitioner cannot file such suit and he has to file the suit for declaration is not tenable. He has relied on a decision of this Court in Ramalingam v. Batchamma, 1958 (1) An.W.R. 403. The plaintiff in that case filed the suit for declaration of title and confirmation of possession and did not seek recovery of possession in the Alternative, but on the other hand sought for permanent injunction restraining the defendant from interfering with her possession. The averment in that suit was that she is in actual possession and enjoyment of the suit property on the date of the suit. The Court below held that decree of confirmation of possession must be construed as one for recovery of possession. Considering those circumstances, the High Court held that if the plaintiff seeks confirmation of possession it means that she is in actual possession of the property and seeks protection of the Court to retain her possession. If she seeks the relief of recovery of possession, she is stating mat she is out of possession and seeks the aid of the Court for obtaining the possession. As the suit is filed for confirmation of possession, it means that she is in possession and she seeks protection of the Court to retain her possession. The High Court in that case relied on the judgment reported in Jhumak Kamti v. Debu lal Singh, (1912) 16 I.C. 898 in which it was held that the relief of recovery of possession is distinct and different from the relief of confirmation of possession. If the plaintiff seeks confirmation of possession, it means that he is in actual possession of the property and seeks the protection of the Court to retain his possession and if he seeks relief of recovery of possession, it means that he seeks the relief of obtaining possession. Following the above said judgment, the High Court has differed from the judgment of the Patna High Court reported in Ram Sekhar v. Sheonandan, AIR 1923 Pat. 137 and Dwarka Prasad v. Krishna Murty, AIR 1939 Pat. 254. In Ramalingam's case (1 supra) it was not the question before the Court as to what method has to be followed for valuation of the suit for confirmation of possession and therefore the said decision is not applicable for the proposition that the Court fee in suits for confirmation of possession has to be computed under Section 47 of the Act. But, however, it is clear that even a suit for confirmation of possession is maintainable.
11. The learned Counsel for the petitioner also relied on a decision of this Court in T. Tatayya v. M. Kutumba Rao, . In that case, the question was whether the Court fee paid on the Memorandum of Appeal is correct. The Court held that in appeals against preliminary decrees where subject matter value is not capable of valuation for want of ascertainment of mesne profits, no ad valorem Court fee as in trial Court is payable and further held that since there was no specific provision, only the fixed Court fee under Section 47 is payable. In the present case, Section 21 specifically provides for the payment of Court fee regarding the relief claimed in respect of immovable property subject to other provisions of the Act providing for the method of valuation in regard to suits filed in respect of immovable properties. The proposition laid down in the above decision is not applicable to the facts of the present case as they are quite different.
12. The learned counsel for the petitioner also relied on a decision of this Court in Bansilal Ratnam's case, 1974 (2) APLJ 4. In that case, the Court held that when there is no decree against the appellant and the appeal is against a finding, there is no section specifically applicable to such case and that the Court fee has to be paid according to residuary Section 47 of the Act VII of 1956. The facts of that case are quite different and the above side decision is not applicable to the facts of the present case.
13. The learned Counsel for the petitioner also relied on a decision of this Court in Subarna Rekha v. Ramakrishna Deo, . In that case, the question before the Full Bench was as to under what provision of the Act the Court fee has to be paid when the appeal is filed against the order rejecting the plaint under Order 7 Rule 11 (a) and (d) of CPC. The majority view of the Court (Jaganmohan Reddy, C.J., and Venkatesham, J., and Kumarayya J., contra) was that Section 47, the residuary provision read with 49 of the Act does not cover a case where the subject matter of an appeal is incapable of valuation. The Court further held that since the Act has omitted to make any provision for payment of Court fee in such case, no Court fee need be paid on an appeal from an order rejecting the plaint under Order 7 Rule 11(a) or (d) of CPC. The facts of that case are different from the facts of the present case and the said decision is not applicable.
14. In view of the above said circumstances, the Revision Petition is dismissed and the petitioner is directed to pay the Court fee according to Section 21 of the Act VII of 1956. The petitioner is granted two weeks time to pay the Court fee from the date of receipt of a copy of this order by the Court below. No order as to costs.
15. The learned Counsel for the petitioner contended that he also sought for injunction in the Court below, that as the Court below passed the order directing to pay the Court fee and value the suit under Section 24(b) of the Act on one-half of the market value of the subject matter, he filed this revision, that this Court in C.M.P. No. 7037 of 1993 granted interim injunction and that the same is continuing. The learned Counsel for the respondents filed C.M.P. No. 10440 of 1993 to vacate the said order. As I have dismissed the revision petition directing the petitioner to pay Court fee according to Section 21 of the Act, I think it just and proper to direct the parties to maintain status quo as on today for a period of five weeks from today. In the meanwhile, the petitioner has to pay the Court fee and get an LA filed for injunction before the Court below and the Court below is directed to dispose of the said I.A. within three weeks thereafter after hearing both the parties. The order of the Court below will hold the field.