Cases Referred:

Advocates appeared:
Chandra Nath Mukherji, Chittatosh Mookerjee, Nirmal Chandra Chakravarty,

JUDGMENT

1. The real question in this case is whether the learned Munsif before whom the present petitioners instituted the suit for ejectment against the opposite parties was right in holding that the plaintiffs were liable to pay ad valorem court-fees on the sum of Rs. 12,000/. It appears that after his direction to the plaintiffs to pay the deficit court-fees, the plaintiffs did not pay the same and he ordered the plaint to be rejected. The plaintiffs' appeal was summarily dismissed by the learned Judge. The plaintiffs' case in the plaint is that the defendants Nos. 1 and 2 were residing with the leave and license of the plaintiffs in the suit premises along with plaintiffs and their mother, that this license has been revoked by the plaintiffs, but the defendants were still continuing to occupy the said premises. As originally framed, the plaintiffs' prayer in the plaint was for a declaration of their title to the land and for delivery of khas possession to the plaintiffs on eviction of the defendants. The plaint was, however, amended and the prayer portion modified. After amendment the plaintiffs' prayer is merely for a decree for possession of the land on eviction of the defendants. As the prayer for a declaration was deliberately omitted by the plaintiffs, there is no scope for arguing that the provisions of section 7 (iv) (c) applies. As the plaint stands, it is quite clear that the plaintiffs are liable to pay court-fees in accordance with the provisions of section 7 (v) of the Court Fees Act. It is equally clear that the provisions of sub-clause (a) of clause (v) of section 7 are not applicable as no profits arise and consequently the provisions of section 7 (v) (b) apply. The position, therefore is that the plaintiffs have to pay ad valorem court-fees according to the value of the subject-matter of the litigation and that value should be taken to be the market-value of the land. It is in that view, that the trial Court ordered an enquiry under section 8 (c) of the Court-Fees Act, And when the enquiring officer reported the value to be Rs. 12,000/- he accepted that value to be correct. On behalf of the petitioners it has been argued that the subject-matter of the litigation is not the land but the right of the plaintiffs to eject the licensee. It is argued that the value of this right will be much less than the market value of the land. If the Legislature had contented itself by merely saying that in suits for possession of lands, buildings or gardens the amount of fee payable shall be computed according to the value of the subject matter, there would have been much scope for the argument that the word 'subject-matter' should not be taken to be the same as the land, buildings or gardens. The Legislature itself however, proceeded to add that such value should be deemed to be 15 times the net profits which have arisen from the land, building or garden during the year next before the date of presenting the plaint, or, if the Court sees reason to think that such profits have been wrongly estimated, fifteen times such amount as the Court may assess as such profits or according to the market value of the land, building or garden, whichever is lower and then if in the opinion of the Court, such profits are not readily ascertainable, or assessable, or where there are no such profits, according to the market value of the land, building or garden. It is true that in some cases of which mention has to be made of a decision of the Patna High Court in Musammat Barkatunnisa Begum v. Musammat Kaniz Fatema (1) I. L. R. (1927) 5 Pat. 631, and a decision in Ram Raj Tewari v. Girnandan Bhagat and others (2) I. L. R. 15 All. 63, the view was taken that it is not the property over which the suit was brought that can be called the subject matter of the suit but the relief itself that is sought which is the subject matter of the suit. In the Patna case the decision was that the subject matter of the suit is the right to eject the defendants and the value of that right is the value at which the defendants' right to remain in the house under the license of the plaintiff may be valued. This Court in Satish Kumar v. Sailabasini Devi (3) A.I.R. (1949) Cal. 621, took a different view. There also a person claimed possession from a licensee, as in the present case, and Sen, J. held that the valuation should be made in one of the ways provided in clause (v) of section 7 of the Court-Fees Act, and that the market-value of the land is the proper measure. The matter was considered at the Bombay High Court in Ratilal Manilal v. Chandulal Chhotalal (4) A.I.R. (1947) Bombay 482. Macklin, J., with whom Bavdekar, J. agreed, held that the market-value of the land itself was the basis on which the court-fees have to he computed His Lordship observed:

"the section says that suits for the possession of land, houses or gardens are to be valued according to the subject-matter, and the sub-section goes on to say that where the subject-matter is land, the value shall be determined according to clauses (a), (b), (c) or (d), and where the subject-matter is a house or garden, the value shall be deemed to be the market-value of the house or garden. In other words, the section contemplates the subject-matter of a suit for the possession of land as being the land and the subject-matter of a suit for the possession of a garden as being the garden and the subject-matter of a suit for the possession of a house as being the house, and there is no suggestion to be derived from the section itself or so far as I know, from any where else that the subject-matter ought to be taken to be anything else. "

2. Though the view taken above which, as I have stated earlier, was also the view taken by Sen, J. in this Court, might result in hardship in many cases, I am unable to see how, on an interpretation of the Statute according to recognised rules, it is possible to escape the conclusion that this view is right. It is certainly possible to say that the subject-matter of a suit is really the relief for which the suit is brought. It was in that view that this Court held in Chandi Charan Das v. Sushilabala Dasi (5) 59 C.W.N. 606, that the valuation for the purpose of jurisdiction should be made in such cases where a plaintiff asks for possession of the land from a licensee not on the basis of the market-value of the land but on the valuation of the relief he wants to obtain by getting rid of the licensee. As was, however, pointed out in that very case, the interpretation of the word 'subject-mater' may well be different when the question of court-fee has to be considered under section 7 (v) of the Court-Fees Act. In my judgment in that case, I observed :-

"I entirely agree with Macklin, J. that in section 7 (v) of the Court-Fees Act, the Legislature used the word 'subject-matter' to mean the land where relief was sought in respect of the land, because the Legislature itself, as pointed out by the learned Judge, went on to say what should be deemed to be the value where the subject-matter is land and again what should be deemed to be the value when the subject-matter is house or garden. "

I can see nothing that would justify any different conclusion. Reference has been made to a decision of this Court in Hafi Md. Fatehwasi v. Haji Abdur Rub and others (6) A.I.R. (1954) Cal. 101, where Lahiri and Guha Ray, JJ. held that in a suit by mutwalli to recover possession of the property it was the interest of the Mutwalli in the disputed property which forms the basis of the valuation and not the interest of the full owner. I am unable to see how this decision is of any assistance to the present petitioner. It is certainly true that the market-value of anything has to be ascertained in respect of the particular interest. In one case it may be the landlord's interest, in another case if may be the tenant's interest and in another case it may be licensee's interest. So when the plaintiff comes to Court as a mutwalli and his interest is to be valued, it is only reasonable to say that it is the market-value of the mutwalli's interest which forms the basis. That is what was decided in Hafi Md. 's Case (6) Applying that rule to the present case the position is that the plaintiff's case being that of a full owner entitled to obtain possession from the licensee, it is his interest as full owner which is to be calculated. That is exactly what has been done. My conclusion, therefore, is that the decision of the Munsif that the plaintiff is liable to pay court fees on the sum of Rs. 12,000/- is correct. I would accordingly discharge this Rules with costs to the opposite parties.