Chandra Prakash, J.
1. This is an application in revision against the order dated 28-1-1974 of Shri Incler Paul Singh, District Judge, Budaun holding that the Court-fee paid by the applicant was insufficient.
2. The suit giving rise to this application was filed by the plaintiff-applicant against the defendant opposite party on the allegations that the plaintiff-applicant was a tenant of the shop detailed in the plaint and the defendants without any right entered into possession of the same. On these allegations the plaintiff wanted a declaration of title and injunction and in the alternative possession.
3. The defendants resisted the claim of the plaintiff and one of the picas taken in defence was that the court-fee, paid was insufficient. The learned trial Court framed a preliminary issue on this point and after hearing the parties came to the conclusion that the Court-fee paid was insufficient. The plaintiff filed a revision against that order in the Court below and that revision was dismissed.
4. The plaintiff has now come up in revision before me.
5. I have heard the learned counsel for the parties and I have also gone through the record. I have come to the conclusion that the view taken by the Court below cannot be held to be wrong. As already noted above, the suit is virtually for possession by the applicant against a trespasser.
6. The question now arises whether this relief comes within Section 7(v)(11) of the Court-fees Act as contended bv the defendants or under Section 7(v-B)(c) of theCourt-fees Act. Section 7(V-B) applies to suits for possession of land between rival tenants and by tenants against trespassers and when the suit is by a tenant against a trespasser under Sub-clause (c) the value is to be determined by annual rent. The suit in this case is for possession of a shop and not for any land, i. e. the suit is for possession of land covered by a building. It is not, therefore, a suit for possession of land merely.
7. Section 7(V)(II) contemplates a suit for possession of land where the subject matter is a building or Garden. In the present case the subject-matter of the suit between the parties is a shop, i. e., a building and according to Section 7(V)(II) of the Court-fees Act such a building has to be valued at the market value. The case, therefore, conies within this clause, i. e., Section 7(V)(II), and not Section 7(V-B). The plaintiff has, therefore, to pay Court-fee in accordance with Section 7(V)(II) and not in accordance with Section 7(V-B) and the Court below was perfectely right in holding that the Court-fee paid by calculating the value of the shop at 12 times the annual rent was wrong.
8. The learned counsel then argued that the present case may come within Section 7(XI) of the Court-fees Act. Section 7(XI) contemplates cases by a tenant against the landlord. This is not a case by a tenant against the landlord.
9. The learned counsel for tbc applicant drew my attention to the Division Bench ruling reported in Chief Inspector of Stamps v. Sewa Sunder Lal : AIR1949All560 in which it was observed that the suit by a tenant in respect of land is analogous to a suit under Section 7(V-B). In the above ruling the suit was not for possession but for declaration and injunction. In the present case the suit is for possession and will be governed by the clauses governing possession. The ruling quoted on behalf of the applicant is, therefore, distinguishable on facts.
6. The application in revision, therefore, fails and is dismissed with costs. The trial Court shall proceed with the case to determine the market value.
11. It was urged in the end by the learned counsel for the applicant that the applicant may apply for amendment. The plaintiff-applicant is at liberty to seek any amendment he likes, and if he seeks any amendment it will be for the trial Court to adjudicate upon the same. So far as the plaint at present is concerned the court-fee paid is insufficient.