KOZHIKOTE PATINHARE KOVILAKATH MAHADEVI ALIAS KUNHITHAMBURATTI ALIAS VALIYA THAMBURATTI AVERGAL STYLED VIYATHEN NOTTI Vs. KOZHIKOTE PATINHARE KOVILAKATH KULAPURA THAVAZHI KARNAVAN AND MANAGER VEERARAYAN ALIAS MARUMAKAN THAMBURAN

JUDGEMENT

(1.) The legal representative of the 1 plaintiff is the appellant. In this second appeal the question is raised as regards the court-fee that should have been paid by the appellant on the memorandum of appeal that he presented to the lower Court. As there is a conflict of authority on the question the case has been posted before us for decision at the instance of Lakshmana Rao, J., before whom the second appeal came originally for hearing.

(2.) The facts are these : The plaintiffs sued for recovery of possession of properties from their tenants. The trial Court decreed the suit, but on condition that they should pay Rs. 8,000 for value of improvements. The plaintiffs appealed against the compensation amount that they were ordered to pay. According to them no compensation should have been decreed against them. They valued the appeal treating it as one for possession ignoring the fact that the subject-matter of the appeal was the value of improvements that they were called upon to pay and not the right to recover possession of the property. The District Judge ordered that court-fee should be paid by the plaintiffs-appellants on the value of improvements. As that court-fee was not paid in time the appeal was rejected.

(3.) In second appeal it is contended that the lower Court was wrong in ordering that the appellants should pay court-fee on the value of improvements and reliance is placed on the decision in Reference under Court-Fees Act, Section 51. In that case the plaintiff sued for recovery of land from defendants 1 to 3. The contesting defendant (defendant No. 2) contended that the land was not liable to be surrendered and also claimed compensation for improvements. The District Munsiff disallowed the claim for improvements and decreed the surrender of the land. The contesting defendant appealed and paid for court-fee, a sum which was the fee payable oh the value of the land. The question was whether the value of improvements should also be taken into account for the purpose of levying the court-fee, the subject-matter of the appeal being the same as that in the suit, - the question of improvements being raised incidentally. The learned judges held that the value of the improvements should not be taken into consideration for calculating the court-fee. They held that, as the claim for improvements was not the subject-matter of the suit but was merely incidental to the decree for possession and on grounds of convenience the fee payable by the appellant should be that payable in a suit for possession of land. They also stated in the judgment: We think the proper answer to the reference is that on appeal even where the only question raised is as to the value of the improvements, the appellant should not be called upon to pay any fee other than that payable in a suit for possession of land.