VENKATAKRISHNA REDDIAR Vs. SWAMIKANNU GOUNDAR

JUDGEMENT

(1.) THE petitioners are the plaintiffs in O. S. No. 192 of 1963 on the file of the district Munsif Court. Villupuram. They filed the suit for themselves and on behalf of the other owners of the fishery and vizhal grass rights in the Peria Eri and ayyaneri in the village of Kankaianur. Villupuram taluk,. belonging to the government for a declaration of their right to the fishery and the long grass produce in the said tanks and for an injunction restraining the defendants from interfering with their said rights. According to the averments in the plaint, the group of persons mentioned in paragraph 3 of the plaint, are entitled to the fourteen shares in the said fishery and vizhal grass rights in the suit tanks. Though the petitioners own only a fractional share representing among themselves about two shares in the aggregate. the defendants 4 to 7 are co-owners owning less than a moiety of the shares, the suit has been filed on behalf of the general body owning the entire fourteen shares. They valued the relief in the plaint as one falling under Section 25 (b) of the Court-fees Act mentioning the market value of the fishery rights and vizhal grass rights as Rs. 1,000/- each aggregating in all to rs. 2,000/ -. On the objection taken by the defendants the learned District Munsif held that the claim was one falling under S. 25 (d) of the Court-fees Act and wanted to proceed with the trial of the suit. But the defendants preferred a revision to this court and urged that the suit should have been valued under Section 25 (b) of the court-fees Act, that the market value of the rights claimed should be assessed at 20 times the annual value of the produce and that the District Munsif's court would have no pecuniary jurisdiction to try the suit. This court issued notice to the government Pleader and he also the Government Pleader and he also supported the contention of the contesting defendants. As the plaintiffs filed an application for amendment of the plaint by altering the claim as one for easement and wanted to pay court-fee under Section 25 (d) and Section 31 of the Court-fees Act. this court forwarded the amendment petition to the trial court and directed the question of the court-fee to be decided afresh in the light of the subsequent developments. The learned District Munsif to whom this amendment petition was forwarded held that the suit should be valued under Section 25 (b) of the Court-fees act, at 20 to 30 times the annual value, and in this view he found that the District munsif's Court had no pecuniary jurisdiction to entertain the suit and dismissed the petition for amendment and returned the plaint for being presented in the proper court having jurisdiction to entertain the same. The plaintiffs unsuccessfully preferred an appeal to the District Court against the order of the trial court returning the plaint for being presented in the proper court and thereafter filed this civil revision petition.

(2.) THE petitioners have not filed any revision against the order of the learned district Munsif dismissing their application for amendment. Hence the question of the court-fee has to be determined only on the basis of the averments contained in the original plaint.

(3.) THERE is no definition of the term immovable property in the Madras Court-fees and Suits Valuation Act, 1955, hereinafter referred to as the Act. But under section 3 (4) of the Act, the expressions used and not defined in the Act, or in the madras General Clauses Act 1891 (Madras Act 1 of 1891), but defined in the Civil p. C. 1908, shall have the meanings respectively assigned to them in the said code. Under S. 3 (14) of the Madras General Clauses Act. 1891, immovable property shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth. Hence the rights claimed in the suit will clearly fall within the definition of immovable property in the Madras general Clauses Act. In Ananda Behera v. State of Orissa. it has been held that the sale of a right to catch and carry away fish in specific portions of a lake over a specified future period amounts to a licence to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a profit a prendre, which is regarded in India as a benefit that arises out of the land and as such is immoveable property. Reliance was also placed in that case on section 3 (26) of the General Clauses Act 1897, which defined immoveable property as including benefits that arise out of the land. In Secy, of State v. Dist. Board, tanjore, AIR 1930 Mad 679 it has been held by this court that an exclusive right of fishery in a locality in the sense that even the lawful owner is excluded from its enjoyment is not a mere profit a prendre, but is a heritable and transferable interest in immoveable property, which can be acquired by 12 years' adverse possession as against the lawful owner. It is clear from the decision in Badri prasad v. State of Madhya Pradesh, 1970-1 SCJ 757 at p. 763 = (AIR 1970 SC 706) that the grant to catch and carry away the fish, in other words, a profit a prendre is immoveable property within the meaning of the Transfer of Property Act read with Section 3 (26) of the General Clauses Act. In Mahadeo v. State of bombay, the Supreme Court observed that things rooted in the earth as in the case of trees and shrubs are immoveable property both within the general Clauses Act and the Transfer of Property Act. Dealing with the contention that the agreement conveyed various produce such as tendu leaves falling within the expression 'growing crop and grass' dealt with as goods in the Sale of Goods act, the Supreme Court held that the petitioners in that case were not only to get leaves from the extant trees, but also such trees as might grow in the future, that they could even burn the old trees, presumably. so that others might grow in their place and that in those circumstances the agreements could not be said to be contracts of sale of goods simpliciter, but created proprietary rights. It should be noted that the vizhal grass produce claimed by the petitioners were not only for the current years, but also permanently for the future. Thus there can be no doubt that the rights claimed in the plaint with regard to fishery rights and long grass produce in the suit tanks are proprietary rights and are immoveable property. Hence it is possible to content that the words in Sec. 25 (b) of the Act are wide enough to comprehend the claim in the present suit, which is in respect of immovable property.