1. This is an appeal against an order of the learned District Judge of Shahjahanpur by which he accepted the report of the Inspector of Stamps and ordered the appellant to pay the court-fee as suggested by the Inspector of Stamps. It appears that the appellant brought a suit for pre-emption to pre-empt a house which was ostensibly sold for Rs. 1200 and offered Rs. 700 as the actual price. When the suit was still before the learned Munsif a report was made by the Inspector of Stamps that the market value of the house in dispute should be as given in the sale deed and a court-fee must be required on Rs. 1200. The learned Munsif accordingly deputed the Court amin to find out the market value and to make a report. The amin reported that the market value of the house, according to his assessment, was Rs. 750. On 14th September 1940, this report was placed before the learned Munsif and he passed the following order:
Amin reports that the value of the house is Rs. 750. The plaintiff says it is Rs. 700, but the Inspector of Stamps who has never seen the house recommends that I should accept its price at Rs. 1200. I am inclined to rely upon the amin's report and therefore do not think that any action be taken on the Inspector's report until the Court disposes of the suit and decides what is the real price of the house.
The case was subsequently transferred to the learned Civil Judge and when the learned Civil Judge proceeded to judgment he dismissed the suit, but as regards the price he held that it was Rs. 1200. He has, however, made a note: 'This may be more than the market value, but it was the price paid.' This would clearly show that the learned Civil Judge was not holding that the market value was Rs. 1200. It has now to be decided what was the real market value, and I see no reason why the amin's report should not be accepted. It has been suggested on behalf of the standing counsel that the case may be sent back for a finding as to the market value, but I do not think that any useful purpose would be served because an enquiry has already been made and the amin has already submitted his report. I hold, therefore, that Rs. 750 is the real market value. In these circumstances there was a deficiency of court-fee on Rs. 50 in the trial Court and on same amount in the Court of appeal which the appellant must pay. I do not agree with the view taken by the learned District Judge that since the appeal was not only with regard to the question of the right of preemption but also for reduction of price court-fee must be paid on RS. 1200. When the suit was dismissed, the appeal was primarily for establishing the right of pre-emption and when a suit for pre-emption is brought the plaintiff is entitled to challenge the price. In Hafiz Ahmad v. Sobha Ram ('84) 6 All. 488 a similar point was raised. The following remark was made by Straight C.J.:
We are of opinion that where an appeal is preferred in a suit for pre-emption, on the ground that the right to pre-empt has or has not been established, as the case may be, no matter what other pleas may be taken, the value of the subject-matter in dispute, for the purposes of the Court-fees Act, must be determined as in terms provided in Clause (6) of Section 7 of the Act.
In this view of the matter the court-fee will i be payable only on the market value. I would, therefore, set aside the order of the learned District Judge and order that the appellant shall pay the deficiency of court-fee as indicated above. I make no order as to costs.