GIRDHARLAL LAVJIBHAI CHOLERA Vs. BHOGILAL GIRDHARLAL

JUDGEMENT

(1.) The petitioner herein is the original plaintiff. Opponents Nos. 1 to 4 are the original defendants and the State of Gujarat is the 5 opponent. The State of Gujarat is only added as a party in this Civil revision application and the reason for joining the State as a party is obvious; the matter concerns the Court Fees Act and that is why the State of Gujarat has been joined as one of the opponents.

(2.) The plaintiff has filed the suit being Special Civil Suit No. 8 of 1976 in the Court of the learned Civil Judge Senior Division Rajkot. The suit is for a declaration and partition of one-fourth share which the plaintiff claims in the suit land and he has prayed that after ascertaining the one-fourth share of the land coming to his share the same should be handed over to him and possession should be given to him. In the suit acting under sec. 12 (3) of the Act The Court Fees Inspector the Inspe- ction Officer made his report on 12/07/1976 requesting the Court that a provisional finding should be recorded that proper court fee has not been paid by the plaintiff on the plaint and the Court should revise the valua- tion and determine that the amount of deficit court fee stamp as Rs. 2142.00. According to the Court Fees Inspector court fee payable on the plaint would come to Rs. 2220.00 but only Rs. 58.00 had been paid by the plaintiff at the time when he instituted the suit. Judging from the Court Fees Inspectors report and the order passed by the learned Joint Civil Judge Senior Division Rajkot after hearing the advocate for the plaintiff it is clear that the whole attempt on the part of the Court Fees Inspector and the conclusion of the learned Judge was on the footing that what matters for the purposes of the Court Fees Act in a case like this is the user of the land for agricultural purpose and not assessment to land revenue for the purpose of agriculture. It is common ground before me that what the plaintiff is asking for is partition and possession of his one-fourth share of land. The judgment of the learned Joint Civil Judge Senior Division shows that in the revenue records in the Village Forms 7 and 12 the land was shown as fallow land so far as the actual use of the land for raising agricultural crops was concerned. However what weighed with the learned Judge was that in the past this land was described as liquor distillery land and that the suit land was given by the State of Rajkot prior to integration of the State in 1947 for running a distillery. However as I will point out in the course of this judgment the question that is required to be considered is whether the land in question was assessed to land revenue for the purpose of agriculture.

(3.) The learned Joint Civil Judge Senior Division accepted the contentions of the Court Fees Inspector and directed that the plaintiff should pay court fees on the full market value of the suit land and the plaintiff should correct the valuation of the suit for the purpose of court fees to Rs. 38 700 pay court fees accordingly.