KUCHA CHELLAN PANCHAYAT Vs. NANDU MAL MOOL CHAND

JUDGEMENT

(1.) THE suit property in Kucha Chellan, Delhi, is described as Dharamsala in the plaint and the question for determination in this petition for revision is whether in a suit for its possession court-fee is payable under Article 17 (vi) or under section 7 (v) (e) of the Court Fees Act.

(2.) THE suit was instituted by the Panchayat of Kucha Chellan purporting to be the managers of the Dharamsala on the allegation that the respondents had taken possession of it with the object of effecting repairs and described themselves as trustees. The possession not having been restored to the Panchayat within six months, this suit was brought under section 9 of the Specific Relief Act for its possession. An objection was taken that ad valorem court-fee ought to be paid in a suit of this nature, as under clause (v) of section 7 of the court Fees Act "in suits for possession of land, houses and gardens" Court-fee is payable on the subject-matter of the property. The trial Court upheld this objection and directed the plaintiffs to put in an amended plaint. There was another preliminary objection which has been decided in favour of the plaintiffs and we are not concerned with it in these proceedings.

(3.) THE plaintiffs have come in revision to this Court and it has been argued by the learned counsel that the suit property is dedicated to God and a suit can be filed on a fixed Court-fee prescribed under clause (vi) of Article 17 of the II Schedule of the Court-Fees Act where it is provided that "every other suit where it is not possible to estimate at a money-value the subject-matter in dispute. . . . . . " a courtfee of Rs. 10/- is paid. This fee has now been raised to Rs. 19/ -. It is also urged by the learned counsel that the property is custodia legis and for that reason also fixed court-fee is paid. So far as the second contention is concerned, it may be disposed of first. In the plaint itself it is stated that the subject-matter of the suit was once in possession of the plaintiffs and the defendants had taken forcible possession of it and have now declined to part with it. There is no question of any custody of this property by the Court. Proceedings under section 145 are pending and the premises have been sealed. This cannot be construed to mean that the Court has taken possession of the property. Indeed, the plaint itself makes it clear that the plaintiffs are seeking to obtain possession of the suit property which, according to the allegations, has been wrongfully obtained by the defendants.