1979 PLP 867 (CLC)

Abbas Ali Khan for Respondents. Dates of hearing: 27th February; 6th and 13th March 1979. The petitioners' appeal against the decree of the trial Court was dismissed by Mr. Lutaf-ur-Rahman, Additional District Judge on the 22nd December, 1975, on the ground of the memorandum of appeal being deficiently stamped.

2. Hence this petition.

3. The respondents, suit for a declaration that they are owners of 2/5th of an area of 45 kanals, 13 marlas comprising of Khasra Numbers detailed in the plaint and for a consequential relief of possession was decreed by the learned trial Court on the 31st July, 1975. The dispute between the parties was in regard to the inheritance of Ilam Din who died leaving a widow Mst. Aisha Bibi, a son Muhammad Sharif, a daughter Mst. Allah Rakhi and the daugh ters of Muhammad Bashir his pre-deceased son. The daughters of the pre deceased son had filed a suit claiming their entitlement to 2/5th of the property left by Ilam Din as well as Mst. Aisha Bibi his widow who had also died by that time. The case of the defendants-petitioners was based upon a gift alleged to have been made by Mst. Aisha Bibi their mother in regard to her 1/8th share in the property of llam Din in favour of defendant-petitioner No.

1. This was contested by the plaintiffs-respondents with the result that Issue No. 2 to the following effect was framed :- Whether Mst. Bibi had gifted her share in her lifetime to defendant No.

11. O. P. D. This issue was decided against the defendants-petitioners and accordingly the suit for 2/5th share was decreed in favour of the daughters of Muhammad Bashir deceased (plaintiffs). 3-A. The suit was valued at a sum of Rs. 72.50 ten times of the land revenue for the purpose of payment of court-fee. The petitioners in their appeal, however, paid a court-fee of Rs. 30 on. the basis of mesne profits for the year preceding the appeal. The learned Additional District Judge held the appeal to be deficiently stamped on the ground that the mesne profits statement included the expenses which were not allowed, and as such a much bigger amount of court-fee ought to have been paid. 3-B. The suit was filed in the year 1972. By Act XtV of 1973 the following new clause (iv-A) was added to section 7 of the Court Fees Act . "In suits for a declaratory decree with or without consequential relief as to right in or title to immovable property based on alleged sale, gift, exchange or mortgage according to the value of the property". Clause (v) of section 7 was also amended. Prior to the amendment, clause (v) provided that in suits for the possession of land, houses and gardens the court fee was payable ad valorem according to the value of the subject matter and such value was deemed to be--where the subject-matter is land permanently assessed to land revenue ten times the revenue so payable ; where land revenue is settled but not permanently-five times the revenue so payable 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 profits have arisen from the land during the year next before the date of presenting the plaint fifteen times, such nett profits ; but where no such nett profits have arisen therefrom the amount at which the Court shall estimate the land with reference to the value of similar land in the neighbourhood; and 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 the market value of the land.

4. By the amendment the first two criteria have been eliminated and in suits for possession of the land the value shall be deemed to be, where the subject-matter is land and where nett profits have arisen from such land during the year next before the date of presenting the plaint-fifteen times such nett profits, and in the other case -the market value of the land.

5. In the present case, two reliefs, one for declaration and the other for possession has been sought as a consequential relief, which would bring the case within the ambit of clause (iv) of section 7 and would allow the plaintiff to fix his own value for the re!ief sought and yet the court-fee value has been fixed as if the suit was for possession only and was covered by Clause (v) o section

7. By the Amendment Act now not only the criterion to fix the valuation in suits for possession has been changed but one other category of suits has also been added in clause (iv-A). Thus under this section when a suit for possession of land is filed the matter would be governed by clause (v) of section 7, and the land would be valued at fifteen times of the mesne profits or the market value of the land, as the case may be. The cases falling under clause (iv) of section 7 can be valued by the plaintiff for the purpose of court-fee according to this own choice. But if a suit is filed for a declaratory decree with or without consequential relief as the right in or title to immovable property based on the alleged sale, gift, exchange or mortgage, the value would still be regulated by fifteen times of the mesne profits for the preceding yea or the market value of the immovable property.

6. The judgment of the learned Additional District Judge cannot be sustained if the case is found to fall under clause (iv)(C) but if it is found to fall either under clause (1v-A) or clause (v), it would be unexceptionable.

7. The first point is whether this is a case falling under clause (iv-A) of section

7. My answer to this question is that it is not a case falling under hat clause. That clause, as stated above, applies to suits for declaratory decree with or without consequential relief as to the right in or title to immovable property based inter alia on the alleged gift. The suit, however, is not based on the alleged gift. It is based upon inheritance only or upon the negation of the gift. As suit for declaratory decree with consequential relief it can fall under clause (iv)(C) of section 7.

7. The suit, no doubt involves the validity of an alleged gift. But even if it is treated to be a suit based on denial of the gift, it would not fall under clause (iv-A) which includes only those suits which are based on gift and not based on denial of the gift.

8. If, however, the two reliefs are to be treated as separate reliefs, the suit regarding declaration would have to be separately valued while the relief for possession would be valued in accordance with clause (v) of section 7.

9. In the present case, it is clear that the main relief is that of declaration based on ownership on the basis of inheritance and the relief for possession is only consequential relief. The relief of declaration was essential in view of the dispute between the parties about the validity of a gift on which the claim of defendants was based. The matter is, therefore, governed by clause (iv). Se Harkishan Lal v. Barkat Ali and others (A I R 1942 Lab. 209). The value already put in by the plaintiffs would remain the value for the purpose of payment of court fee in the appeal also however arbitrarily it might have been fixed. The appeal was not, therefore, deficiently stamped. The petitioners, on the other hand had paid excess court-fee.

10. I, therefore, allow this petition, set aside the order of the learned Additional District Judge, remand the case to him and direct him to decide the appeal on merits. The parties shall bear their own costs. M. Y. M. Petition allowed.