ABDUL RAHIM SAHIB Vs. KULLAPPA GOWNDEN

JUDGEMENT

(1.) This is a petition filed under Section 115, Civil Procedure Code, and Section 15 of the Charter Act to revise the order of the District Munsif of Tirupathur, dated the 24th April 1915, wherein he held that the property in dispute fell under Section 7, Clause V(b), of the Court Fees Act (Act VII of 1870) and that the suit was rightly valued and was within the pecuniary limits of his jurisdiction.

(2.) The plaintiff, claiming to be the purchaser of the properties mentioned in the plaint for Rs. 7,000, sued for a declaration of title, for an injunction restraining the defendants from interfering with his enjoyment of the plaint properties and for possession of the properties if the Court was of opinion that the plaintiff was not in possession. The plaintiff valued the suit at Rs. 1,000, the details of the valuation being Rs. 5 for the injunction asked for, Rs. 364-11-0 for possession, Rs. 115 value of three wells, Rs. 500 value of cocoanut trees and Rs. 27 value of plantain trees. The defendants objected to the valuation and inter alia stated that the value of the cocoanut tope was Rs. 4,500. The contention for the defendants, so far as it is material for the purpose of this petition, is that part of the property claimed is a cocoanut garden on which there are several cocoanut trees (plaintiff admitting at least 500) and that the case falls under Section 7, Clause V(e) which provides that where the subject-matter is a house or garden the fee is payable on its market value. The District Munsif was of opinion that, even assuming there was a cocoanut garden on the property, it did not fall within the definition of a "garden" in Section 7, Clause V(e), but that it should be treated as assessed land.

(3.) Under the Suits Valuation Act, VII of 1887, the value for purposes of jurisdiction and of Court-fees is the same, and the point for determination is whether Clause V(c) of Section 7 is to be applied or Clause V(e) of the Court Fees Act. The District Munsif seems to treat the question as a dry question of law, but I think that this is a question of fact to be determined on the evidence in each case. A garden has been defined in Murray s Dictionary as an enclosed piece of ground devoted to the cultivation of flowers, fruits or vegetables" and there can be little doubt that cocoanuts are edible fruits and that they are largely used for culinary purposes in this country. If the trees stand on a well-defined portion of the property which is marked off from the rest, I do not see why the land on which the trees stand should not be a cocoanut garden. The District Munsif was of opinion that the Full Bench decision of this Court in Audathodan Moidin v. Pullambath Mamally 12 M. 301 decided that the word garden is to be taken as meaning ornamental, pleasure or vegetable garden: but I do not think that the District Munsif is right in his view. The question in the above case related to the valuation of a paramba on which there were cocoanut trees. The land (being in Malabar) was not assessed and all that their Lordships decided was that the case fell either under Clause V(c) or Clause V (c) of Section 7 of the Court Fees Act, according as the paramba was of a description that would come under the definition of a garden or not. The following observations of their Lordships. at page 304 make this clear: In fact in Malabar a tree tax is substituted for the land assessment, and whether or not a paramba is assessed depends on the nature of the trees grown therein. It is, therefore, evident that parambas should either be classed as lands paying no revenue or as gardens. The word garden is nowhere defined in Act VII of 1870 but from its occurring in connection with the word houses, we are of opinion that the term refers primarily to a garden in the English sense-ornamental or pleasure or vegetable, and that parambas do not ordinarily come under that category. We do not, however, wish it to be understood that in no case should a paramba be treated as a garden for the purpose of the Court Fees Act. Whether or not the paramba sued for is to be regarded as a garden or as land which pays no revenue, is a question of fact which must be decided in each case." I think the proper course that the District Munsif should have taken was to have called for evidence as to whether, having regard to the position of the land on whichsteer the stand and the number of trees thereon, the plot of land can be said to be a garden or not. A. few isolated trees on a piece of land will not make it a garden: but where a number of trees are planted on a particular piece of land which is well defined and can be marked off from the rest of the land, it is difficult to see why that particular plot should not be treated as a garden if the land is used for the cultivation of flowers, fruits or vegetables.