2009(4) ALL MR 364
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
J.H. BHATIA, J.
Radhabai Wd/O. Mahadeo Thakur Vs. Gajanan Shriram Akone & Ors.
Writ Petition No.531 of 2008
26th March, 2009
Petitioner Counsel: Mr. S. G. KARMARKAR
Respondent Counsel: Mr. HINDARIA , Mr. M. G. GAWANDE,Mr. A. M. JALTARE
Maharashtra Suits Valuation (Determination of Value of Land for Jurisdictional Purposes) Rules (1983), R.2 - Bombay Court Fees Act (1959), S.6 - Suit for partition and separate possession of land - Valuation - Suit property has to be valued for the purpose of jurisdiction as well as for the purpose of payment of Court Fee - Suit lands held on permanent settlement - Therefore, held, for the purpose of Court fee, the value of the property shall be equal to 40 times survey assessment - However, for the purpose of jurisdiction, the value shall be equal to 200 times the assessment payable in respect of the land as per the provisions of Rules under Maharashtra Suit Valuations Rules.
Section 6(v) of the Bombay Court Fees Act provides that where the suit is for possession of land and the land is held on settlement for a period not exceeding thirty years and pays the full assessment to Government, the value of the property shall be deemed to be a sum equal to twenty times the survey assessment and if the land is held on a permanent settlement, or on a settlement for period exceeding thirty years and pays the full assessment to Government, the value of the property shall be deemed to be a sum equal to forty times the survey assessment. Thus looking to the provisions of Section 6(v) of the Bombay Court-Fees Act, valuation for the purpose of court fee has to be 20 times or 40 times of the survey assessment depending on the period of settlement. In the present case, the suit lands are held on permanent settlement and therefore for the purpose of court fee the value of the property shall be equal to 40 times survey assessment. However, for the purpose of jurisdiction the value shall be equal to 200 times the assessment payable in respect of the land as per the provisions of the Rules under Maharashtra Suit Valuation Rules. Accordingly, the suit property has to be valued for the purpose of jurisdiction as well as for the purpose of payment of court fee. Naturally, when claim of the plaintiff is to the extent of 1/5th share in the suit property, she will have to pay 1/5th of the total court fees, which would be required to be paid if suit would be for possession of complete property. These provisions were not taken into consideration by the trial court while directing the petitioner to make proper valuation and to pay ad voleram court fee. [Para 4]
JUDGMENT
JUDGMENT :- Rule. Rule is made returnable forthwith. With consent of the parties, the matter is taken up for final hearing immediately.
2. Heard the learned counsel for the parties.
3. The petitioner filed Reg.Civil Suit No.368 of 2007 for partition and separate possession to the extent of 1/5th share in four agriculture properties, bearing survey Nos.71, 43/1, 43/2 and 43/3, all situated at village Khadka, Tq.-Hingna, Distt.-Nagpur. The defendants made an application (Exh.27) contending that the suit was not valued properly for the purpose of court fee and jurisdiction because as per certificate obtained by them, market value of the suit property was crores of rupees. This application was contested on behalf of the plaintiff. He contended that the lands are assessed to the land revenue and it is not necessary to value of the suit for jurisdiction and court fee as per market value. However, the application came to be allowed by 7th Jt. Civil Judge (Jr. Dn.), Nagpur by impugned order dated 13/12/2007. By that order, the petitioner was directed to correct the valuation of the suit property and also to pay ad valoram court fee for the same. That order is challenged in the present petition by the plaintiff.
4. Rule 2 of the Maharashtra Suits Valuation (Determination of value of the Land for Jurisdictional Purposes) Rules, 1983 provides that in a suit for possession of the land, house and garden mentioned in para no.(v) in section 6 of the Bombay Court Fees Act, 1959 for the purpose of jurisdiction, the value of the property shall be determined as follows -
(b) Where the subject-matter is land - a sum equal to two hundred times of the assessment payable in respect of the land.
Section 6(v) of the Bombay Court Fees Act provides that where the suit is for possession of land and the land is held on settlement for a period not exceeding thirty years and pays the full assessment to Government, the value of the property shall be deemed to be a sum equal to twenty times the survey assessment and if the land is held on a permanent settlement, or on a settlement for period exceeding thirty years and pays the full assessment to Government, the value of the property shall be deemed to be a sum equal to forty times the survey assessment. Thus looking to the provisions of Section 6(v) of the Bombay Court-Fees Act, valuation for the purpose of court fee has to be 20 times or 40 times of the survey assessment depending on the period of settlement. In the present case, the suit lands are held on permanent settlement and therefore for the purpose of court fee the value of the property shall be equal to 40 times survey assessment. However, for the purpose of jurisdiction the value shall be equal to 200 times the assessment payable in respect of the land as per the provisions of the Rules under Maharashtra Suit Valuation Rules. Accordingly, the suit property has to be valued for the purpose of jurisdiction as well as for the purpose of payment of court fee. Naturally, when claim of the plaintiff is to the extent of 1/5th share in the suit property, she will have to pay 1/5th of the total court fees, which would be required to be paid if suit would be for possession of complete property. These provisions were not taken into consideration by the trial court while directing the petitioner to make proper valuation and to pay ad voleram court fee.
5. The learned counsel for the respondents stated that the order passed by the trial court is not correct. However, he pointed out that the plaintiff had simply stated in para no.12 of the plaint that for the purpose of court fee and jurisdiction the claim of the plaintiff is valued at Rs.15,000/- and the requisite court fee of Rs.540/- is affixed without giving any details as to how the suit property was valued for the purpose of jurisdiction and court fee. According to him, if the details would have been given, this controversy would not have arisen. I find substance in his argument. Any how, the suit could not have been valued for the purpose of jurisdiction or for the court fee on the basis of market value as the trial court did. Therefore, the impugned order is liable to be set aside. The learned counsel for the petitioner makes a statement that the petitioner/plaintiff shall make appropriate amendment in para no.12 of the plaint giving details as to how the suit properties have been valued for the purpose of jurisdiction and court fee, taking into consideration the provisions of Bombay Court Fees Act and the Maharashtra Suit Valuation Rules.
6. In view of the above, the writ petition is allowed.
The impugned order is hereby set aside.
The plaintiff is granted leave to make appropriate amendment in para no.12 of the plaint in view of the above statement.