Annada Prasad Singha Roy vs Nanda Lal Chakravorty and another

Brij Narain, J.C.

This is an application in revision on behalf of Annada Prasad Singha Roy plaintiff in suit No. 20 of 1953 against the order dated 7-2-1955 passed by the learned Subordinate Judge, Tripura, by which the petitioner has been ordered to pay court-fees according to the market-value of the house (room) in suit.

It appears from the plaint that the plaintiff-petitioner claims to have got a room containing two doors forming part of a building known as Nutan Havell (the room is in the western portion of this building) from late Abdul Barik Khan at Rs. 45/- per mensem and he paid Rs. 500/- as security and the wife of the plaintiff was under the treatment of the opposite party No. 1 who was allowed to occupy a portion of the room in question as a licensee on the condition that he would leave possession whenever asked by the plaintiff to do so. In fact the opposite party No. 1 is not alleged to have occupied the room exclusively at any stage.

In para 5 of the plaint it has been alleged that the plaintiff terminated the licence and asked the opposite party No. 1 and his compounder opposite party No. 2 to vacate the premises but the latter failed to comply and raised various pretexts and ultimately the opposite parties forcibly turned out the plaintiff from the entire room in question (vide para 6 of the plaint) and thus the plaintiff was completely ousted from the possession of the room with the result that he had to bring this suit for possession.

The learned Advocate for the petitioner has urged that S. 7, cl. (v) (e), Court-fees Act, 1870, which has been applied to this case by the learned Subordinate Judge is not really applicable. Section 7, cl. (v) (e) runs as follows:

The amount of fee payable under this Act in suits hereinafter mentioned shall be computed as follows :

In Suits for possession of land, houses and gardens according to the value of the subject-matter, i.e., according to the market-value of the house or garden.

The argument advanced on behalf of the petitioner is that as the opposite party No. 1 was a mere licensee, his position would not be in any way better than that of a tenant in a suit for ejectment. There is no doubt that an amendment was made in the Court-fees Act by inserting cl. (xi) in S. 7 and sub-cl. (cc) of cl. (xi) provides for suits for recovery of immovable property from a tenant including a tenant holding over after the determination of a tenancy and court-fee is to be paid according to the amount of rent of the immovable property to which the suit refers, payable for the year next before the date of presenting the plaint that is on one year''s rent and not on the market-value.

But as against a person who forcibly takes possession over immovable property the suit for possession cannot be brought under cl. Cxi) of S. 7 and it will have to be brought under S. 7, cl. (v) (e), Court-fees Act. The mere fact that the opposite party No. 1 was alleged to have been a licensee of the plaintiff sometime back will not be material at all, for according to the allegations made in paras 5 and 6 of the plaint the opposite party No. 1 as well as the opposite party No. 2 who is a total stranger forcibly turned out the plaintiff from the room in question and now the plaintiff has brought this suit against the opposite parties treating them as wrongful occupiers or trespassers.

The case would therefore naturally be governed by S. 7 cl. (v) (e), Court-fees Act, and the ruling reported in - Mt. Barkatunnisa Begum Vs. Mt. Maniza Fatma and Another, , which lays down that the subject-matter of the suit in an ejectment suit is the right to eject the defendants and the Value of that right is the value at which the defendant''s right to remain in the house under the license of the plaintiff may be valued, is not applicable to the present case. Similarly the rulings reported in - ''Ram Raj Tewari v. Girnandan Bhagat'', 15 All 63 (B); - ''Basiram Christian v. Ganesh Chandra Das Gupta'', 24 Cal WN CLXVII (C); - ''Brahmayya v. Lakshminara-simham'', 16 Mad 310 (D) and - ''Bibl Nurjahan v. Morfan Mundul'', 11 Cal LR 91 (E), do not apply to the present case.

The position might have been different if the opposite party No. 1 had been allowed temporarily to occupy a portion of the room and the possession over the entire room had remained all along with the plaintiff. Under such conditions the argument that Art. 5 of Sch. II, Court-fees Act, was applicable could have some force as the real owner is always deemed to have remained in possession through his licensee at will; vide - ''Gopal Krishna Deb v. Jagadindra Kishore'', AIR 1954 Tri 21 24 (para 13) (P).

In the present case as has already been mentioned above, the opposite party No. 2 was never a licensee of the petitioner and as the opposite parties have completely ousted the petitioner from the room in question the present suit for possession would be clearly governed by S. 7, cl (v) (e), Court-fees Act. as was held in - ''Satish Kumar v. Sailabasini Devi'', AIR 1949 Cal 621 (G) and in - Ratilal Manilal Vs. Chandulal Chhotalal, .

The present application in revision has. therefore, no force and it is hereby dismissed with costs to the opposite parties.