Madras High Court
Kullappa Goundan vs Abdul Rahim Sahib on 9 November, 1916
Equivalent citations: 39IND. CAS.254, AIR 1918 MADRAS 805
JUDGMENT Ayling, J.
1. This is a Letters Patent Appeal against an order of Kumaraswami Sastri, J., passed under Section 115, Civil Procedure Code. The matter arises out of a suit brought in the Court of the District Munsif of Tirupattur for a declaration, injunction and, if necessary, decree in ejectment in respect of certain lands. The defendants contended that the value of the suit lands was in excess of the District Munsif's jurisdiction and an issue was framed on this point. In the plaint the value of the lands is calculated as provided in Section 7, Clause 5(b), of the Court Fees Act, VII of 1870, at five times the assessment; but defendants contended that, as cocoanuts were grown on a portion of the lands, this portion fell under Clause 5(e): and that their market value should be adopted for purposes of valuation. The District Munsif rejected this contention of the defendants and decided that the plaint valuation was correct.
2. The learned Judge, without expressing a final opinion as to the proper method of valuation, considered that the fact that the lands were separately assessed to land revenue was not conclusive; and that it was the duty of the District Munsif to decide on evidence "whether having regard to the position of the land on which the trees stand and the number of the trees thereon, the plot of land can be said to be a garden or not. " He accordingly set aside the District Munsif's order and directed him to dispose of the objections to jurisdiction in the light of his remarks. With all respect, the facts of the case appear to me to be sufficiently clear from the record before us to enable us to decide whether the District Munsif was in a position to dispose of the issue without further enquiry, and whether his finding was correct.
3. It is clear from the plaint schedule that the suit properly consists of five dry and six wet fields each separately assessed land revenue (ryotwari). On one or more of these survey fields (it is immaterial which) was what is called a "cocoanut tope" that is, a number of cocoanut trees growing close together: and the defendants contended that such field or fields must be regarded as constituting a garden within the meaning of Clause 5(e) of the Court Fees Act.
4. We do not know over how many fields the 'tope' extended, or how thickly together they grow. I do not consider such information necessary to a decision; and may remark that it would be most inconvenient to make the proper principle of valuation of a suit for purposes of jurisdiction dependent on such an uncertain factor as the comparative density of the trees.
5. I shall assume the position most favourable to the defendants; that all the cocoanut trees grew on a single survey number sufficiently close together to form what is usually referred to as a tope. Would this survey field be a "garden," so as to come under Clause 5(e) of the Court Fees Act?
6. As pointed out by a Full Bench of this Court in Audathodan Moidin v. Pullambath Mamally 12 M. 301 ; 4 Ind. Dec. (N.S.) 559 there is much significance in the juxtaposition of the words "house or garden" in that clause: and it should be taken as referring primarily to a garden in the English sense, ornamental or pleasure or vegetable. There is no allegation or suggestion in the present case either in the pleadings or arguments, that the tope or indeed any of the survey numbers adjoin or are close to a dwelling-house. What we do know is that they are assessed lands held on patta presumably for agricultural purposes and that on a portion of them cocoanut trees are grown instead of an ordinary wet or dry crop. If the holder of the land raised a crop of, paddy or raggi on this portion, there can be no question that it would be valued under Clause 5(b) of the Court Fees Act. Does the fact that cocoanut trees are raised instead make any difference? In my opinion it does not, and, in support of this view, I may rely on the decisions of Venkayya v. Ramasami 22 M. 39 ; 8 M.L.J. 278 ; 8 Ind. Dec. (N.S.) 29 and Murugesa Chetti v. Chinnathambi Goundan 24 M. 421. In the former of these Moore, J., held that a tenant who raised cocoanuts on a wet field must be held merely to have chosen to grow one description of crop, cocoanuts, in lieu of another, paddy or raggi; and this view was quoted with approval by Bhashyam Iyengar, J., in the latter case. The learned Judge dealt at some length with the distinction between agriculture and horticulture, and was clearly of opinion that the owner of a betel garden or cocoanut tope was engaged in the former and not in the latter. With this view, I respectfully concur, and consider that it is, as applicable in regard to Section 7 of the Court Fees Act as to the provisions of the Registration Act, or the laws of landlord and tenant, which were the subjects of construction in those cases.
7. I would, therefore, hold that the conversion of an assessed arable field into a cocoanut tope does not affect the application of Clause 5(b) of Section 7 of the Court Fees Act; and as no other circumstance is put forward, I think the District Munsif was justified in applying that clause and accepting the plaint valuation without further enquiry. I would, therefore, set aside the order of the learned Judge and restore that of the District Munsif, The appellant should get his costs from the respondent in this Court.
Seshagiri Aiyar, J.
8. I agree. The question in this case is whether, in a suit to recover possession of land on which cocoanut trees stand, the valuation should be under Section 7, Clause 5(b) or under Clause 5(e) of the Court Fees Act, VII of 1870. Mr. P.R. Ganapathi Aiyar contended that when cocoanut trees are grown on land, it becomes a garden and, as such, its value must be fixed according to the market rate.
9. There are two points to be considered. The first, is whether irrigable land on which cocoanut trees are grown becomes a garden, and the second is, if it is not a garden, whether the trees on the land should be separately valued. As regards the first of these questions, the decisions in Audathodan Moidin v. Pullambath Mamally 12 M. 301 ; 4 Ind. Dec. (N.S.) 559 seems to be conclusive. The word 'garden' in Section 7, Clause 5(e), of the Court Fees Act, is apparently used in a technical sense. The Act was drafted by an English lawyer and, as was pointed out by Mr. Justice Ayling in the course of the argument, the term "garden" connotes in the English language that it is either an appendage to the house or is a place which is kept for purposes of pleasure. The fact that the term "garden" is coupled with the term "house" shows that what the Legislature contemplated is a piece of ground which is used by the owners of a house as a place of recreation and as one on which vegetables and the like are grown for purposes of borne consumption. The definition of the term "garden" in Stroude's Judicial Dictionary supports this view. It may be that an enclosed place detached from the house is resorted to by the owner of it for purposes of pleasure. Such a ground would be a garden. I do not mean to suggest that no profit should be derived from such a place. I am only referring to the meaning which the term ordinarily has. No doubt in common parlance, we speak of a cocoanut tope or a mango grove as a garden. If that is the legal acceptance of the term, a place where tamarind trees are grown should similarly be regarded as a garden. There is something repugnant in the idea of calling a group of tamarind trees or illuppa trees as a garden. I do not think the term "tope" which is employed largely in India is in any way synonymous with the term "garden. " I am, therefore, of opinion that this piece of ground on which cocoanut trees have grown is not a garden.
10. The next question is whether, when a suit relates to the recovery of the land as well as the trees thereon, a separate valuation should be put upon the trees apart from the land. This question is not covered by any direct authority. It was held by Mr. Justice Moore in Venkayya v. Ramasami 22 M. 39 ; 8 M.L.J. 278 ; 8 Ind. Dec. (N.S.) 29, that the planting of cocoanut trees on cultivable land did not alter the character of the land. The learned Judge said: "They have, it must, in my opinion, be held, merely chosen to grow one description of crop, cocoanuts, in lieu of another, paddy or raggi...In many parts of Malabar one may see in a stretch of wet land fields grown with cocoanut trees, intermingled with plots of paddy land. Both are irrigated in much the same way and both may, it appears to me, be held to be cultivated with wet crops. " According to the learned Judge, cocoanut trees on arable land must be regarded as a crop on the field: such a field is not converted into land of a different description or quality by the planting of cocoanut trees; for example, betel vine may be grown upon paddy fields or pepper vine or sugarcane or plantain trees. In all these cases, the distinctive characteristic of the field as arable land is still kept up, notwithstanding the fact that what is generally known as agricultural produce is not grown upon the field. The dictum of Mr. Justice Moore was quoted with approval by Mr. Justice Bhashyam Ayyangar in Murugesa Chetti v. Chinnathambi Goundan 24 M. 421. The learned Judge says: "it was held [referring to Venkayya v. Ramasami 22 M. 39 ; 8 M.L.J. 278 ; 8 Ind. Dec. (N.S.) 29] that instead of raising one kind of crop (paddy or raggi) by tillage, he raised without tillage another kind of crop (cocoanuts). That decision proceeds, in my opinion, on the principle that the holding is used as an agricultural holding, whether the crop be a cereal one or a garden crop. " It follows from this judgment, with which I entirely concur, that cocoanut trees upon nanja lands are only a crop on it and do not change the nature of the field. If that is so, no separate Court-fee is leviable on the cocoanut trees. It is settled law in this Presidency that in suing to recover possession of the land, the plaintiff need not value the mesne profits separately, unless he lays claim to past mesne profits at a particular rate. See Maiden v. Janakiramayya 21 M. 371 ; 7 Ind. Dec. (N.S.) 619. It has also been held that no Court-fee need be paid upon the value of improvements. See Referred Case No. 4 of 1899, Reference under Court Fees Act, Section 5(5). Similarly no Court-fee is payable upon the trees, because on a decree for possession of the land the trees grown on it would pass to the decree-holder. Mr. P. R. Ganapathi Aiyar's suggestion that if nothing is said about the trees in decreeing possession of the land it would be open to the judgment-debtor to remove the trees is not supported by any authority. Ordinarily, a decree for possession of property would convey all that stands upon that property at the time of the decree; and there is no reason why in the case of cocoanut trees, a different principle should obtain.
11. I am, therefore, of opinion that the field in question is not a garden; nor is a separate fee leviable upon the trees.
12. I am, therefore, constrained to differ from the learned Judge who has held that the field should be valued as a garden.