PATHUMMA UMMA Vs. ALIYAMMAKKANAKATH MOHIDEEN (DEAD)

JUDGEMENT

(1.) In this second appeal the defendants, against whom a decree for ejectment has been made have appealed to this Court against the refusal of the lower appellate Court to grant to them the value of certain improvements consisting in the construction of a pucca building on the site in-question.

(2.) A preliminary objection to the appeal has been taken on behalf of the respondents on the ground that the proper Court-fee has not been paid in respect of the appeal. The appellants have paid the same Court-fee in the second appeal as was paid in respect of the plaint by the plaintiff-respondent. The contention has been advanced that though in a suit for possession the Court-fee payable on a plaint may be as prescribed in a. particular manner by the Court- fees Act, still when the appeal is by the defendant, and when the claim by the defendant on appeal has reference to the compensation claimed by him but refused to be granted,, the valuation of the appeal should logically be the value the defendants seek to recover from the plaintiff and that therefore the proper Court-fee should be paid thereon.

(3.) In the trial Court before the District Munsif the decree in favour of the plain-tiff included a condition that the plaintiff should pay the defendants as and for improvements a sum of Rs. 2,053. This condition in the decree was on appeal deleted by the learned Subordinate Judge. The provision in the Court-fees Act is. that in respect of a memorandum of appeal in such a case the Court-fee payable is ad valorem on the amount or value of the subject-matter in dispute. The true logical position then is that, if the subject-matter in dispute in appeal has reference merely to the value of the improvements, then the value thereof should be taken to be the value for purposes of appeal and Court-fee should be paid thereon. But it has been contended by the learned vakil for the appellants that the appeal is not merely in respect of compensation but has reference also to the title of the plaintiff-respondent and that the compensation is merely claimed as a condition precedent to the plaintiffs seeking to enforce their right to eject. If it is a mere condition precedent, it follows logically that the subject- matter in dispute should be regarded only as the right to possession of the plaintiff. In the memorandum of appeal before us there are grounds taken as regards the title of the plaintiff. It cannot be regarded as a memorandum merely confined to the amount of compensation. Even if it were so, if it was sought to be enforced merely as a condition precedent to a right to possession, the subject-matter in dispute would still be only the claim for possession. Though there is considerable force in the contention of the respondents that the subject-matter in dispute has reference only to the amount of compensation and that the question of title raised is a mere camouflage for escaping liability for Court-fees, we are not prepared to say that especially in the case of an enactment for revenue purposes such as the Court-fees Act, it is not open to parties to avail themselves [of any camouflage that the law allows or does not forbid. We are not prepared to say that it is open to a Court in such circumstances to neglect the actual form of the appeal and determine the question of Court-fees having regard to what may be said to be the substance of the claim.