GUTTULA MANGAYAMMA Vs. GOWALA GANNIKA

JUDGEMENT

(1.) The petitioner seeks to revise the order of the Principal District Munsif, Amalapuram, in O.S. No. 20 of 1965 whereby the District Munsif held on Issue No. 6 that the Court-fee paid is correct and sufficient. Mr. Kanyaka Prasad appearing for the petitioner has argued that the learned District Munsif erred in holding that the Court-fee paid is correct for the relief asked for viz., for specific performance of the contract of sale and possession of the property. According to Mr. Prasad, the plaintiff has to pay separate Court-fee for the relief of possession also under section 29 of the Andhra Pradesh Court-fees and Suits Valuation Act. Before dealing with the point raised by Mr. Prasad it may be necessary to state in brief the case of the plaintiff as it appears from the plaint. The plaintiff entered into an agreement of sale dated 20th November, 1964 with defendants 1 to 3 under which the plaintiff paid a sum of Rs. 1,000 in advance to defendants 1 to 3 and on the same date obtained possession of the land. Subsequent to this, defendants 1 to 3 sold the same piece of land to the 4th defendant-petitioner herein by a registered sale-deed dated 15th December, 1964, and by virtue of the sale the petitioner dispossessed the plaintiff. It is the case of the petitioner (4th defendant) that he had an earlier agreement of sale of the dated 29th July, 1964, on which date he was also put in possession pursuant to the agreement; defendants 1 to 3 executed a sale-deed in his favour on 15th December, 1964 and that he had not dispossessed the plaintiff. It is on the basis of this averment the defendants raised the issue before the lower Court that the plaintiff cannot seek both the reliefs, one for specific performance of the contract and the other for possession of the land by paying the Court-fee under section 39 of the Court-fees Act and for the relief of possession, he should pay separate Court-fee, The learned District Munsif, having regard to the scope of section 39 (a) of the Court-fees Act held that the Court-fee paid for specific performance of the contract of sale and possession is sufficient and that the question of paying separate Court-fee for the relief of possession does not arise. Therefore, the question that arises for consideration is whether the Court-fee paid under section 39 of the Court-fees Act for the relief asked for by the plaintiff is sufficient and correct.

(2.) Section 39 (a) of the Court-fees Act reads- "In a suit for specific performance with or without possession fee shall be payable (a) in the case of a contract of sale, computed on the amount of the consideration ; " The language of the section is clear and unambiguous. Whether the plaintiff lays action for specific performance alone or for possession also, the Court-fee payable is on the contract of sale computed on the amount of consideration. Section 29 of the Act which deals with suits for possession not otherwise provided for is not applicable to cases where suits are laid for specific performance of a contract of sale with or without possession. Section 29 of the Act applies to a case where action is laid for possession of immovable property not otherwise provided for. Dealing with the scope of section 7 (v) of the Madras Court-fees Act which corresponds to the present provision section 39 (a) Venkata Subbarao, J., in Sundara Ramanujam Naidu v. Sivalingam Pillai,(1923)45 M.L.J.431 : I.L.R. (1924)47 Mad. 150, held that though the relief by way of giving possession arises from the relief granting the execution and delivery of the sale deed, the delivery of possession is a part of the specific performance of a contract of sale, unless the terms thereof show that the vendor was not under an obligation to deliver possession. It is thus obvious that a suit to enforce specific performance of a contract of sale and possession of the property agreed to be sold is a suit for specific performance falling under section 39 of the Act. Chandrasekhara Sastry, J., in Suryakantamma v. Venkatachalam, (1964)2 An.W.R.417 : (1965)1 A.L.T. 229, having regard to the facts of that case held that the suit was essentially one for specific performance not only against the 1st defendant but also against the 2nd defendant the subsequent vendee and it was properly valued and proper Court-fee was paid as prescribed under section 39 of the Court-fees Act.

(3.) There could be absolutely no doubt that even if in a suit for specific performance of an agreement of sale possession of property is asked for, it is only a part of the relief of specific performance and ithas to be valued only under the special provision, section 39 of the Court-fees Act. The face that specific performance of the contract of sale is asked for against the subsequent vendee will not alter the nature of the relief asked for as it would still be a suit for specific performance of the contract of sale and consequent possession of the property. Therefore, I am unable to agree with the contention of the learned Counsel for the petitioner that in a case where a party seeks specific performance of the contract and possession of the property, he should pay separate Court-fee for the relief of possession under section 29 of the Act. I find no merits in this petition and dismiss the same with costs. Revision dismissed.