The main legal point established in the judgment is the interpretation of the legal framework for the valuation of the suit property and the payment of ad valorem Court fee, based on relevant legal provisions and previous court decisions.

N.K. Mody, J.

1. Being aggrieved by the order dated 12-9-2008, passed by 9th Addl. District Judge, Indore in C.S. No. 73-A/08 whereby application filed by respondent Nos. 4 and 7 under Order 7, Rule 11, Civil Procedure Code whereby the Court below directed to correct the valuation of the suit as per market value of land and pay ad valorem Court fee, present petition has been filed. Short facts of the case are that petitioner filed a suit against the respondents on 2nd July, 2008 for declaration, possession and permanent injunction alleging that petitioner is owner of a piece of plot situated at Vikas Apartment, Co-operative Housing Society, Film Colony, Indore, admeasuring 1500 Sq. Ft. which has been purchased by the petitioner vide sale deed dated 5-10-2001. The suit was valued at Rs. 60,000/- for the purposes of declaration and Court fees of Rs. 2,000/- was paid. So far as possession is concerned, it was alleged that plot in question is admeasuring 1500 Sq. Ft therefore, the Court fees @ Rs. 10/- is paid by valuing the land @ Rs. 10/- per acre. In the suit it was prayed that decree be passed against the respondents declaring that petitioner is the owner of the suit property and petitioner be put into possession of the property. An application was filed under Order VII, Rule 11, Civil Procedure Code by the respondents No. 4 and 7 wherein it was alleged that requisite Court fee has not been paid. Hence, the suit be dismissed. The application was opposed by the petitioner.

2. After hearing the parties, learned Court below directed the petitioner to value the suit as per the market value of the suit property i.e., plot and pay ad valorem Court fee, against which present petition has been filed.

3. This petition was dismissed vide order dated 14-5-2010 passed by Divisional Bench of this Court. Thereafter, a review petition was filed by the petitioner which was numbered as R.P. No. 169/2010 and was allowed vide order dated 17-9-2010 whereby the order dated 14-5-2010 passed in writ petition was recalled and the writ petition was re-registered on its original number, this is how the writ petition has come for hearing again.

4. Shri Vishal Baheti, learned counsel for the petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that the Court below committed error in directing the petitioner to value the suit as per market value of the land in question and to pay ad valorem Court fee. It is submitted that since the plot in question is an open piece of land and assessable to land revenue, therefore, it was not incumbent upon the petitioner to put the value of the plot on market value and to pay ad valorem Court fee. For this contention reliance is placed on the definition of "Land" as defined under section 2(k) of the Land Revenue Code, 1959 which reads as under :

(k) "land" means a portion of the earth's surface whether or not under water; and, where land is referred to in this Code, it shall be deemed to include all things attached to or permanently fastened to anything attached to such land;

5. Learned counsel for the petitioner placed reliance on a decision in the matter of Narayan Vyankatrao vs. Nagubai Balaji, 1977 MPLJ 578 wherein this Court has held that merely by diverting the use of land for non-agricultural purposes and by constructing a house thereon, the land does not cease to be held in Bhumiswami rights. Moreover, when the definition in section 2(k) specifically provides that land shall be declared to include all things attached permanently to it the Courts are bound to give effect to the inevitable corollary and there is nothing to suggest that provisions of section165(1) are confined only to agricultural land or open land and will cease to apply if the land held by a Bhumiswami has been utilized for non-agricultural purposes. Further reliance is placed on a decision in the matter of Begum Shah Hussain vs. Atta