MAHABIR PRASAD Vs. SHAMSHUDDIN ANSARI

JUDGEMENT

(1.) THE only point that arises for decision in this revision is whether the suit out of which this revision has arisen falls under sub-section (xi) (e) of Section 7 of the Court-fees Act as am ended in its application to this State or under sub-section (v) (ii) of the said section. If the suit falls under the first provision, not only ad valorem court-fee would have to be paid according to the amount of one year's rent but its valua tion for the purposes of determining the pecuniary jurisdiction of the court would also be the same in view of Section 8 of the Suits Valuation Act. That valua tion would admittedly be within the pecuniary jurisdiction of the Munsif in whose court this suit was filed. If on the other hand the suit falls under the latter provision, it will have to be valued for the purposes of jurisdiction at the market value of the property involved in or affected by the relief sought. The market value of the property in respect of which relief for possession has been prayed for has been determined by the trial court at Rs. 3150/- on the basis of the report of the commissioner who was appointed to determine the value. On that valuation the suit may go out from the pecuniary jurisdiction of the Munsif unless he exercised enhanced powers to try the suits exceeding rupees three thousand.

(2.) THE brief facts of the case were that the plaintiff-opposite party No. 1 filed his plaint with the allegation that he was a tenant of a shop situate in the town of Barabanki holding it from the father of defendant-opposite parties Nos. 2 and 3 and that he used to carry on his cloth business in this shop. The rent of this shop, according to the plaintiffs, was Rs. 22.50 p.m. The plain tiff further alleged that he had taken the defendant-applicants Mahabir Prasad and Shankar Lal as well as the defendant-opposite party No. 4 Banshi Dhar as partners with him in his cloth business and in that capacity they began to sit on the shop in question. The partner ship was dissolved but after that these persons did not give up their possession. On the other hand they colluded with the landlord and persuaded him to re cognise them as his tenants in superses sion of the tenancy rights of the plain tiff. The plaintiff treating himself to have been dispossessed from this shop filed the suit for recovery of possession against the landlord as well as the other three defendants who were his erstwhile partners in the business.

(3.) THE suit would clearly fall within the scope of Cl. (v) (II) which relates to suits for possession of land, buildings or gardens and in such suits where the subject-matter is a building or garden, the court-fees is required to be paid according to the market value of the building or garden, as the case may be. The learned counsel for the plain tiff opposite party argued that even if this provision applies to the suit, the plaintiff is not the owner of the building and he has only tenancy rights therein and as such the shop is not to be valued at its ordinary market value but only the tenancy rights of the plaintiff there in should be valued in some just and equitable manner. It is suggested by him that this equitable and just manner would be to put the value of the tenancy rights at the amount of rent payable for one year. It is pointed out that Cl. (v-B) provides for suits for possession of land between rival tenants and by tenants against trespassers and though this clause in terms is confined to agricultural land on which rent is payable as recorded in the Collector's register, this would give an indication of the mind of the legis lature as to how they thought that the rights of a tenant in such land should be valued. Sub-clause (c) of this clause pro vides that in a suit by a tenant other than a permanent tenure-holder, or a fixed rate tenant or an ex-proprietary or occupancy tenant, the land is to be valued by its annual rent. It is suggest ed that by anology this principle should be extended to evaluating the rights of a tenant in a building when the tenant brings a suit for possession against .tres passers who have ejected him from that building. In this connection reference is made to a decision of this Court in Chief Inspector of Stamps, U. P. v. Sewa Sunder Lal (AIR 1949 All 560). That was a suit for injunction brought by a tenant against the defendant who was interfering with the plaintiff's possession over the leased premises consisting of building. The consequential relief of in junction was to be valued under clause (iv-B) which provides that this valuation shall not be less than one-fifth of the market value of the property involved in or affected by the relief sought or rupees two hundred whichever is greater. For the purposes of court-fees it was held that the market value of the pro perty in such cases in which the plain tiff has only tenancy right can be fixed at one year's rent by applying the ana logy of Cl. (v-B) (c). The question as to how the property should be valued for the purposes of Suits Valuation Act was not decided in this case. Section 4 of the Suits Valuation Act specifically provides that the suits falling under Cl. (v) of Section 7 of the Court-fees Act shall be valued for the purposes of jurisdiction at the market value of the property involved in or affected by the relief sought. The relief sought in this case against the defendant- applicants is recovery of possession over the shop after their dispossession. The property affected by this relief is the shop itself. As such for the purposes of suit valua tion it is the market value of the shop which has to be taken into consideration and not the market value of the limited rights which the plaintiff may have in this property. A similar question direct ly came before Nagpur High Court in Gajanan Nanaji v. Rajeshwar Krishnaji, (AIR 1950 Nag 237). It was held that a suit for possession of a shop in a market building by the permanent lessee thereof is clearly for possession of a por tion of a house. Therefore the subject-matter is, so far as the question of pos session is concerned, the house and not the possession of the leasehold rights which are intangible and are not capa ble of physical possession. The valua tion of the suit, therefore, depends on the market value of the house and not on the value of the leasehold rights in it. With respects, I agree with this view. Under the circumstances the suit should have been valued for the purposes of jurisdiction at Rs. 3150/- as determined by the trial court. There was some con troversy between the parties whether the learned Munsif in whose court this suit was filed had pecuniary jurisdiction upto .rupees two thousand only or en hanced jurisdiction upto rupees four thousand. There is no material on re cord to determine this fact.