VARRY MUTYALAMMA ALIAS MURTYALU Vs. DASARY NARAYANASWAMY

JUDGEMENT

(1.) Petitioners are the defendants in a suit filed against them by the plaintiffs. They seek to revise an order by the. District Munsif allowing a belated amendment of the plaint after the issues were framed. They are persons in occupation of huts on an extent of land in Rajahmundry measuring about 800 sq. yards Plaintiffs sued to evict them praying for a declaration of the right of the first and second plaintiffs to the suit site, for evicting defendants thereon and delivery of possession. They valued the plaint under Section 7(v) of the Court- Fees Act at Rs. 800 being the value of 800 square yards. Defendants in their written statement contested the position that they were in the position of licensees and also the financial jurisdiction of the District Munsif to try the suit on the ground that the value of the site and the huts standing thereon was in excess of Rs. 3000 After issues, the plaintiffs sought to amend their plaint in a manner obviously designed to clothe the District Munsiff with financial jurisdiction and also to lessen the fiscal burden of Court-fee which may be cast upon them. The amendment sought in para. 8 of the plaint is as follows: Suit to declare the plaintiffs right in the suit and to recover possession thereof after ejecting defendants who are licensees of plaintiffs 1 and 2. Hence value of the plaintiffs right to eject the licensees is Rs. 800 under Section 7, Clause v of the Court-Fees Act.

(2.) The District Munsiff followed a Patna decision in Mst. Barkatunnissa Begum V/s. Mst. Kaniza Fatma (1926) I.L.R. 5 Pat. 631, which took a view of Section 7(v) of the Court-Fees Act which is against the settled case-law of this presidency and with which I am unable to agree. Plaintiff in that case sued her own daughter and her son-in-law to eject them from a portion of her house in which she alleged she had permitted them to reside as licensees. The daughter, according to her plaint, set up title to the house as against her on the basis of an oral gift. It was held in revision by the learned Bench that the suit was one for ejectment and that Court- fee was payable under Section 7(v) of the Court-Fees Act according to the market value of the subject matter of the suit which in this particular case was a right to eject the defendant" the value of the right being the value to the defendants of the right to remain in the house under the licence of the plaintiff. It was accordingly held that the valua lion of this right, viz., Rs. 400 given by the plaintiff was not unreasonable and that the suit was properly valued. The facts in that case were peculiar. It however is no authority for any general proposition that any plaintiff can under Section 7(v) of the Act put any valuation he pleases on the subject-matter which is land. This is not a suit for an injunction relating to land which is governed by wholly different principles. The suit is substantially one for the recovery of possession of land on which there are huts from several defendants, the first prayer in the original plaint being a declaration of the plaintiff's right or title to the suit land. It is true that the plaint alleges that the defendants are licensees. There is, however, no specific provision in the Court-Fees Act for a suit against a licensee. This is not a case between landlord and tenant which would be governed by Section 7(xi)(cc) on which ad valorem Court-fee on a year's rent would be payable. The amendment which the learned District Munsiff allowed on the basis that it was intended to clarify the plaint is in fact closely bound up with the question of Court-fee and jurisdiction.

(3.) I am unable to see anything wrong with the original plaint and even if the plaint had been filed in the amended form in the first instance, it would have exposed itself to legitimate criticism, that it was substantially a suit under Section 7(v), namely, one for declaration of title and for recovery of possession of land from persons in adverse possession. The amendment is an ingenious way of importing into Section 7(v) a right never contemplated thereof valuing relief in suits for recovery of possession of land in any manner the plaintiff pleases. My attention has been drawn to Mar oof Sahib V/s. Ayyakannu Naicker (1934) 68 M.L.J. 755 : I.L.R. 58 Mad. 1051, where an Inamdar whose right; to the melwaram was admitted sued a tenant for a declaration that he was the owner of the kudivaram and for the recovery of the holding. It was held that the suit was governed by Section 7(v) and not by Section 7(iv) (c) and that the correct Court-fee leviable was on the market value of the kudiwaram right which alone was the subject-matter of the suit. That decision emphasises the fact that suits for possession of land are in terms governed by Section 7(v) which contemplates an ascertainable value for the land which is the subject-matter in the suit, which cannot be made to depend upon the will or caprice of the plaintiff.