WAZIR LACHMAN DAS Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is an application against an order of the Sub Judge (A D. M.) Jammu deciding that the court fees paid on the suit should be on the market value of the property in dispute under the provisions of section 7 clause 5 (d) of the Court Fees Act.

(2.) THE present suit was filed by the plaintiffs for recovery of possession against the defendants on the allegation that the plaintiffs were the original tenants of the land in question and were conferred proprietary rights by Allan of His Highness Maharaja Bahadur and were thereafter forcibly dispossessed by the defendants. In the plaint, the plaintiffs have clearly stated that the land in question was assessed to land revenue and formed a share of an estate paying revenue to the Government. In support of the allegations in the plaint, the plaintiffs have filed the record of rights of 1970, Dal Bach "revenue charge book" of the years 1974 -75 and certain Girdawaris for the year 1988 to 2004. The defendants in his written statement controverter the allegations of the plaintiffs in their plaint and alleged that the land in question was not agricultural land. The defendant pleaded in his written statement that the land was not one which was assessed to land revenue. Before the court below learned counsel for the plaintiffs conceded that in the present case Section 7 clause 5 sub clause (d) would apply and on the basis of this concession the court held that the court fees should be paid on the market value of the properties in question.

(3.) MR . Prakash appearing for the petitioners submitted that any concession on a question of law or for that matter as to whether clause (v) (d) of Section 7 of the Court Fees Act would apply, would not be binding on the petitioners. The argument appears to be sound and must prevail. The court should have determined the court fees payable on a perusal of the provisions of the Court Fees Act rather than determining this point on the concession of the parties. Moreover, another ground given by the court below is that the property in dispute is situated within Municipal limits. In fact, the Court Fees Act does not make any difference between the lands which are situated within or beyond municipal limits. It is well settled that the question as to what court fees should be paid should be determined not on what defendant says but on the allegations of the plaintiff in his plaint. There was a clear indication in the plaint that the land was a part of an estate paying revenue to Government which was supported by the documentary evidence. In these circumstances Section 7 clause (v) (b) of the Court Fees Act would apply to the facts of the present case. The Advocate General submits that before sub clause (b) would apply the land must be assessed to land revenue even at the time when the suit is instituted. I am unable to agree with this argument. Section 7 clause (v) (b) of the Court Fees Act and Explanation thereto runs as under: -