I. S. ISRANI, J. - (1.) THIS SB. Civil Misc. Appeal under Order 43 Rule l (u) C. P. C. has been filed against the judgment and order dated August 17, 1977 passed by learned Civil Judge, Kota in Civil Appeal No. 57/72 and 85/74 whereby the case was remanded to the trial Court which arose from the judgment and decree dated July 15, 1971 passed by learned Additional Munsif Magistrate, Court No. 1, Kota.
(2.) IT will suffice to state for the purposes of this appeal that appellant plaintiffs filed the suit against the respondents inter alia pleading that two particular mosques situated in Kota did not belong to the Wakf Committee and Rajasthan Board of Muslim Wakf. IT was pleaded that the entire property is owned and possessed by the Choti Panchayat, Momnan, Kota and that these properties had been dedicated to the Wakfs and not were constructed from personal funds belonging to appellants and Mohammedans in general or pulbic have not contributed towards it. However, in the gazette dated Sept. 8, 1966 the property was declared Wakf property and shown at items No. 6,7 and 8. A declaration was, therefore, sought that the property is not Wakf property. The suit was contested and inter alia an objection regarding valuation and court fee raised stating that the market value of the property was Rs 1,50,000/- and the appellants should have paid court fees on this amount. Since the court fee has not been paid on this amount the suit, it was contended, deserved to be dismissed. Several issues were framed by the trial Court and issue No. 8 was regarding the above plea along with another plea that no consequential relief has been claimed. The trial Court, after recording evidence produced by both the parties and hearing arguments, decreed the suit of the appellants The respondents preferred to file an appeal which was decided by the impugned order dated August 17, 1977 by which the judgment and decree of the trial Court was set aside and the matter was remanded under the provisions of 1 l (u) of the Rajasthan Court Fees and Suits Valuation Act, 1961 (hereinafter referred to as 'the Act' (with a direction that the trial Court should give opportunity to both the parties to amend their pleadings and thereafter recording the evidence and should decide the question of payment of court fee on the plaint. None has appeared on behalf of the respondents inspite of notice. I have heard Shri Biri Singh, learned counsel for the appellants, as also gone through the judgments of both the courts below as also record of the case. The main plank of the contention of learned counsel for the appellants is that the property involved in the suit are two mosques which do not belong to one person but are owned by a Panchayat on whose behalf the suit was filed in representative capacity. It is further contended that the respondents raised an objection stating that the market value of the property was Rs. 1,50,000/-but did not substantiate the same and not a single witness was produced to support their contention. The trial Court framed issue No. 8 regarding court fee and also decided the same against the respondents and has clearly stated that the respondents have not produced any evidence whatsoever in support of their contention. It is, therefore, submitted by the learned counsel that the trial Court committed no error and rightly decided the issue against the respondents. It is also contended that the provisions of Sec. 11 (4) (a) of the Act are not applicable to the present suit as the trial Court had already framed proper issue regarding payment of court fee and given opportunity to the respondents to produce any evidence written or oral to support their contention. The issue was decided against the respondents as no evidence was proved by them to substantiate the allegation made in the written statement. According to Halsburys Laws of England (3rd Edition Vol. 33) and following meaning has been given to the word 'property': "property is that which belongs to a person exclusively or other's, and can be the subject of bargain and sale. It includes goodwill, trade marks, licences to use a patent, book-debts options to purchase, life policies and other underrights a contract. ' The definition of property came under consideration in the matter of Sri Lakshmi Mandir Theertha Swamiar of Sri Shirur Mutt Vs. Commissioner (1 ). While considering the definition of word 'property', it was mentioned that it consists not merely of ownership and possession but in the unrestricted rights of use and disposal and includes the right of destroying the property itself. the property involved in the suit was two mosques regarding which a declaration was sought. Therefore, it is evident that this is not a property in ordinary sense as there can be no value regarding any place of prayer like mosque, temple, church or Gurudwara etc. There can be hardly question of assessing such properties in the ordinary sense of the term as to fix market value of such property as there can be no sale of mosque or temple etc. Sub-clause (e) of Sec. 24 of the Act deals with such property which may or may not be subject matter of valuation and it is clearly provided that the court fee shall,be computed in such cases on the amount on which the relief sought is valued in the plaint, subject to a minimum fee of 25/ -. Evidently, when the property involved in the suit is not capable of valuation, Sub-clause (a) to (d) of Sec. 24 of the Act have not been made applicable to such a suit. I am fortified in my opinion as this view was taken in the case of M/s Ranchordas Shyamji Khirmani vs. Mrs. Balwant Kaur Malik (2 ). There is no doubt that it is open to the State to impose different views of court fees in respect of different type of suits as it is a taxing statute. I am, therefore, of the clear opinion that the trial Court committed no error in deciding issue No. 8 regarding valuation of the court fees against the respondents when the respondents did not produce any evidence whatsoever to substemiate their contention alleging that the property had market value of Rs. 1,50,000/ -. In fact, it is not possible to assess the value of the mosque which is unlimited in the eyes of those who belong to particular religion and go there everyday to offer prayers. In the facts and circumstances and the law discussed above, impugned order dated August 17, 1977 passed by learned Civil Judge, Kota in civil appeal No. 57/72 (85/74) is set aside and the judgment and order passed by learned trial Court dated July 15, 1971 is restored. It is directed that the learned Civil Judge shall proceed to decide the appeal on merits in accordance with law. The matter should be given priority since it has become quite old, Appeal allowed. No order as to costs. . ;