T SANTHANA KESARI Vs. KATHIJA BAI

JUDGEMENT

(1.) THE revision petitioner is the defendant in O. S. No. 291 of 1991 in the Court of District Munsif of Udhagamandalam. THE respondent/ plaintiff instituted the suit for ejectment in respect of O. 03 cents in r. S. No. 1772/4 of Ootacamund Town together with superstructure thereon stating that the revision petitioner is a tenant in occupation of the premises under a registered lease deed dated 1. 4. 1976, that he continues as a tenant by holding over and that as per the terms of the lease deed the lessee is not entitled to remove the superstructure put up by him on determination of lease. THE revision petitioner though admitted that the construction was made as per the terms of the lease, pleaded in his written statement that the lease of the suit land is governed by the provisions of Madras City Tenants Protection Act and that he has already filed O. P. No. 3 of 1991 under Scc. 9 of the City Tenants' protection Act for appropriate relief. He also contended that the Court-fee paid is not correct. THE respondent/plaintiff has paid Court-fee for the relief of delivery of possession of superstructure on the piece of land which is not separately valued. Instead he is liable to pay Court-fee on the actual market value of the building on the land. On these pleadings an issue on the adequacy of Court-fee paid was framed and tried as a preliminary issue. Learned District munsif found that under Sec. 43 (2) of the Court-fees Act, the Court-fee paid in the plaint is correct. And this civil revision petition is directed against the said order.

(2.) LEARNED counsel for the revision petitioner/ defendant submitted that Sec. 43 (2) of the Tamil Nadu Court -fees and Suits Valuation Act relates only to suits by lessor for the recovery of possession of the property leased out to the lessee. In the case on hand the property demised in the year 1976 in favour of the revision petitioner is only the land and not the superstructure. The stipulation in the lease deed that the tenant shall not remove the superstructure put up by him in the leased land at the time of surrendering vacant possession is contrary to Sec. 12 of the Madras City Tenants Protection act, hence that cannot be countenanced. By an astute drafting of the plaint the respondent/ plaintiff has sought recovery of possession of the superstructure also whose ownership is in controversy by paying the court-fees under Sec. 43 (2)of the Act.