Bal Raj Tuli, J. - (1.) THIS writ petition is directed against the order of the Registrar of this Court as Taxing Officer under Section 5 of the Court Fees Act, 1870 (hereinafter referred to as the Act), with regard to the amount of Court fee payable on a Regular First Appeal filed by the Petitioner against Respondent No. 2. Since the matter related to the payment of Court fee on appeals arising out of the suits relating the Waqf properties, I issued notice to the Advocate -General of Punjab and Haryana and counsel have appeared on their behalf.
(2.) THE facts are that the Punjab Waqf Board, Ambala Cantonment, Respondent 2, filed a suit for the possession of a mosque against the Petitioner, Mandir Mausuma Gita Bhawan, through its President and Secretary, and stated the value of the property as Rs. 15,000.00 in the plaint, but paid a fixed Court fee of Rs. 15.00 in accordance with the notification dated October 3, issued by the Punjab Government. It was stated in the plaint that the Defendant (Petitioner in this case) had taken forcible possession of the mosque in 1953. The suit was decreed by the learned trial Court and an appeal against that decree has been filed in this Court. An objection was raised by the office that proper Court fee had not been paid. The learned Counsel for the Appellant stated that the proper Court fee payable was Rs. 19.50 under Schedule II, Article 17(vi) of the Act on the ground that it was not possible to determine the market value of the mosque or the temple even if it is considered to be a house under Section 7(v) of the Act. The matter was placed before the Taxing Officer who has expressed the view that a mosque is a property and the Appellant must pay ad valorem Court fee on its value. That value was stated in the plaint to be Rs. 15,000.00, which had been accepted by the Appellant, that is, the Petitioner in the present case. The Petitioner has challenged that order of the Taxing Officer. The learned Counsel for the Petitioner has argued that even if the property in suit is to be considered a house, the Court fee is payable on its market value as is provided in Section 7(v) of the Act. The mosque cannot be sold because no person has the right to sell it nor can any person pass title of ownership to a purchaser. Mosque has been generally described as house of God or abode of God and is primarily used for saying prayers by the Muslim community. A mosque which is a Waqf property is dedicated to God and is, therefore, inalienable. There is no doubt that a mosque can be adversely possessed as has been held in Mosque known as Masjid, Shahid Ganj and Ors. v. Shromani Gurdwara Parbandhak Committee, Amritsar, A.I.R. 1938 Lah. 369 (F.B.), and Mosque known as Masjid Shahid Ganj and Ors. v. Shiromani Gurdwara Parbandhak Committee, Amritsar, and Anr. : A.I.R. 1940 P.C. 116, but the mere fact that a mosque can be adversely possessed does not mean that it is salable. The person getting into adverse possession does so on his own force and not because some person passes on the title to him. Any property which is Waqf, whether it is a mosque or something else, is, according to the Mohamedan Law, "extra commercium" and its ownership vests in God, as was held by Bhide, J., in Mosque known as Masjid Shahid Ganj and Ors. v. Shiromani Gurdwara Parbandhak Committee, Amritsar, A.I.R. 1938 Lah. 369 (F.B.). Since a mosque cannot be sold, it has no market value and, therefore, the Court fee payable is under Article 17(vi) of Schedule II to the Act, according to which the Petitioner has paid the Court fee on the memorandum of appeal. Section 7(v) of the Act does not apply.
(3.) THERE is another aspect of the matter, that is, the property has to be seen on the date of the suit for the purposes of Court fee because it is that property which becomes the subject -matter of the suit. At the time the suit was filed, the property was a temple and a temple has also no market value. It was so held in Rajagopala Naidu v. Ramasubramania Aiyar and Anr. : A.I.R. 1924 Mad. 19 (F.B.). That judgment was followed by a Full Bench of the Rangoon High Court in U Pyinnya and Anr. v. U Dipa, A.I.R. 1929 Rangoon 134. A learned Single Judge of the Nagpur High Court in Motilal Shioji Ram v. Shambhoolal Ganpatlal, A.I.R. 1938 Nagpur 481, also held that the temple falls within the category of "res -extra -commercium," and after referring to the Madras and Rangoon cases (supra) and Parsottamanand Giri v. Mayanand Giri : A.I.R. 1932 All. 593, observed as under: It is further contended that the temple in dispute is not a public but a private temple. I do not see what difference it makes to the marketability of the temple whether it is private or public. The temple, so long as it stands as a temple dedicated to a deity installed in it, remains as a property of the deity and consequently where it is private in the sense that it is meant mainly or exclusively for the worship of the persons who founded it does not make it any more marketable than it is when the public at large are allowed to enter and worship there. In either case the property belongs primarily to the deity and, therefore, it must fall within the category of "res extra commercium". So that even if the property in suit is considered to be a temple, it has no market value and, therefore, Court fee has been correctly paid under Article 17 (vi) of Schedule II to the Act.;