PANCHAPANDAVAMALAI MASJID Vs. STATE OF MADRAS

JUDGEMENT

(1.) The plaintiffs in O.S. No. 9 of 1962 on the file of the Subordinate Judge, Vellore, who are the Muthavallis of the Panchapandavamalai Masjid, are the appellants. The main claim of the Muthavallis representing the mosque is that under an ancient inam title deed the suit properties were dedicated to the mosque by Nawab Sadattba Khan and by reason of such an endowment, the properties are part of a public wakf to which the Public Wakfs (Extension of Limitation Act of 1959) would apply. The case of the appellants is that they were in possession of these lands for several years in the past and recently the Government without acquiring the lands under the provisions of the Land Acquisition Act have interfered with the possession of the plaintiffs and took possession of a part of the wakf properties and converted the same into pucca roads or tracks. Consequent upon such taking over of the lands of the appellants, they had lost nearly four acres. The further case of the appellants is that by reason of such dispossession of the lands, they have lost permanently the right to the usufruct of as many as 204 trees thereon for well over a period of eight years. In these circumstances, the appellants filed the present action in O. S. No. 9 of 1962 on the file of the Subordinate Judge of Vellore and sought for recovery of possession of the lands and the trees thereon which were so appropriated by the Government in the manner stated above. On the same cause of action, which according to the plaintiffs, occurred in or about 1960-61, they seek for possession of the trees which stood thereon and compendiously seek an immediate monetary relief in the sum of Rs. 14,000 from the defendants, if they are unable to secure possession of the lands and the trees as claimed by them. The plaintiffs paid a Court-fee of Rs. 15, basing their right to pay such a quantum of Court-fee under G. O. Ms. No. 1617 Home, dated 15th May, 1961. This notification was issued and published in the usual manner in the Fort St. George Gazette giving relief of reduction of Court-fee payable in respect of suits for restoration of wakf properties under the Madras Court-fees and Suits Valuation Act. On a check-slip issued by the office for the purpose, the Court sua motu considered the issue whether the plaintiffs have paid the proper Court-fee on the plaint and whether the allegations made therein would entitle them to take advantage of the concessional Government Order referred to above and refrain from paying any additional Court-fee, even though, according to the terms of the plaint, the plaintiffs incidentally seek for a money relief of Rs. 14,000. The learned Judge was of the view that on a reading of the plaint, the plaintiffs should be deemed to have claimed the compensation of Rs. 14,000 in the alternative for their main claim of possession and applying Section 6 (2) of the Madras Court-fees and Suits Valuation Act of 1955, he was also of the view that the plaint shall be chargeable with the highest of the fees leviable on the reliefs. The plaintiffs were, therefore, directed to pay a deficit of Court-fee of Rs. 1,035.51). Challenging the propriety and legality of this order, the plaintiffs have appealed.

(2.) Mr Appu Rao, learned Counsel for the plaintiffs, having invited our attention to the Government Order which entitled the plaintiffs to pay a Court-fee of Rs. 15 in so far as the plaint relief related to the restoration of the properties belonging to a public wakf, climed that the money claim of Rs 14,000 was only explanatory of his main claim for possession and that in the circumstances, it was never intended to be an alternative prayer and would, therefore, sustain that the Court-fee already paid is correct and the call for additional Court-fee is not warranted. The learned Government Pleader would, however, state that as the plaintiffs have incidentally urged in the plaint that their right to the usufruct was disturbed from the year 1952 and thereafter and as the money equivalent for the loss of such usufruct is claimed in the plaint, the totality of the plaint allegations ought not to be understood as a prayer for a bare suit for recovery of possession, but as a suit based on the same cause of action, in which two alternative reliefs are sought, one for the recovery of possession and the other in the alternative for the recovery of a sum of Rs. 14,000 which is the money equivalent of the lands and trees wrongly taken possession by the Government.

(3.) Undoubtedly there is no equity in a tax and even so in Court-fees But Courts are reluctant to adopt such an interpreation, if a favourable interpretation is available on a reasonable understanding of the allegations in the plaint presented to a Court, against the plaintiffs in the action. The main claim, which the plaintiffs seek for in the suit is for recovery of possession of the properties belonging to the wakf. There is no dispute that this is a public wakf to which the concessional notification issued on 15th May, 1961 and referred to above applies. But the point is whether the essential or primordial relief asked for in the suit is only for possession and the reference to the claim for compensation is ancillary to the primary relief or alternative to it. The word "ancillary" in its grammatical sense would mean subordinate to or arising out of something else, whilst the word ''alternative" poses a disjunctive or a totally different relief other than the one mainly asked for in the suit. If, therefore, the relief of compensation asked for in this suit by the plaintiff flows from the primary relief of possession, then it would be ancillary and would cease to be alternative. It is not in dispute that only if the reliefs are alternative, the obligation to pay a higher Court-fee under Sub-section (2) of Section 6 of the Court-fees Act would arise. But if on the same cause of action, a major relief and an ancillary relief, which is subordinate to or arising out of the main relief is sought, then the proviso to Section 6 (1) of the Court-fees Act, is immediately attracted. Section 6 refers to multifarious suits. Sub-section (1) therein reads: