1. This is a plaintiff's appeal arising out of a suit for ejectment of the defendants filed in the revenue Court. The plaint, as filed, professed to be one in a suit under Section 44 of Act 3 of 1926. Various pleas were taken in the written statement but the Assistant Collector decreed the claim of the plaintiffs. He, however, held that the plaintiff had wrongly put down his claim under Section 44 of the Tenancy Act and that he should get a decree for ejectment under Section 197(e) read with Section 84(a) of the Act. He passed a decree accordingly. The defendants went up in appeal to the Commissioner's Court and there an objection was taken on behalf of the plaintiff that no appeal lay to the Commissioner inasmuch as the Court had passed the decree under Section 84 and not under Section 44 of the Act. 'The learned Commissioner entertained' the objection and returned the memorandum of appeal for presentation to the proper Court. On this the defendants filed their appeal in the Court of the District Judge. No objection was taken as to jurisdiction and the District Judge has allowed the appeal and dismissed the claim holding that there has been in effect no substantial alteration in the character of the occupation of the land. The plaintiffs have come up in appeal to this Court and on their behalf it is urged that no appeal lay to the District Judge.
2. A preliminary objection is taken on behalf of the respondents that no appeal lies to this Court if no appeal lay to the District Judge. We must overrule this objection. The District Judge was seized of this case and passed a decree as an appellate Court and his decree falls within the scope of Section 245 of the Tenancy Act, and an appeal from an appellate decree of the District Judge lies to the High Court on any of the grounds mentioned in Section 100 of the Code of Civil Procedure. When the District Judge entertained the appeal and passed a decree reversing the decree of the first Court dismissing the claim we must entertain an appeal from the decree of the District Judge. The main question is whether an appeal lay to the District Judge. Now if the suit were under Section 44 of the Act then an appeal would lie only to the Commissioner and not to the District Judge at all. If the suit were treated to be one under Section 84, in consequence of the decree passed under the latter section then no appeal would lie to the Dist. Judge unless the amount or value of the subject matter exceeds Rs. 200 as provided in Section 242(1)(a). If the valuation is less than Rs. 200 then the order of the Assistant Collector would be final and the aggrieved party would have no further remedy by way of appeal. The question is whether in this case the value of the subject matter exceeded Rs. 200. The rent of the plot was assessed at Rs. 15 and the valuation of the suit in the first Court as well as the valuation in the Court of the Commissioner and in the Court of the District Judge were the same. No party attempted to value the tenancy rights differently. It is urged on behalf of the respondents that the value of the subject matter is not the same thing as the valuation for the purposes of jurisdiction or for the purposes of court-fee. There must have been something to be said for this contention if the matter were purely res integra. But even under the Rent Act of 1881 it was held by this Court in Radha Prasad Singh v. Pathan Ojha (1893) 15 All. 363, following earlier decisions that the valuation in the plaint based on rental was binding on the parties. The language, so far as this point is concerned, was not altered in the Act of 1901 and has been repeated in Act 3 of 1926.
3. Under Section 7(ii)(cc) of the Court-fees Act in a suit between a landlord and tenant for recovery of immovable property from a tenant, including a tenant holding after the determination of a tenancy, the suit has to be valued according to the amount of the rent of the immovable property to which the suit tefers payable for the year next before the day of presenting the plaint. Section 233 of the Tenancy Act makes the whole of the Court-fees Act, barring certain provisions in the schedule applicable to suits under the Tenancy Act. In the Fourth Schedule, group (a), for suits under Section 88 of the Act the provisions in the Court-Fees Act apply and so also for Section 44. The principle difference is in the different periods of limitation prescribed for suits under Section 84 and Section 44 respectively. Now Section 8 of the Suits Valuation Act requires that in suits which would include a suit under Sections 44 and 84 of the Tenancy Act Court-fees are payable ad valorem under the Court-Fees Act, the value as determinable for computation of Court-fees and the value for purposes of jurisdiction shall be the same. We are of opinion that inasmuch as the Court-Fees Act is applicable and the Court-fee prescribed for suits under these sections of the Tenancy Act are identical with that prescribed in the Court-Fees Act, Section 8 of the Suits Valuation Act would apply and the valuations for the purposes of jurisdiction, and for the purposes of Court-fee have to be the same and that valuation should be the rent for the next proceeding year. In this particular case the valuation was rupees 15 which was the amount of such rent. Thus the suit was properly valued and there was neither any over-valuation nor under-valuation. In these circumstances Section 11 of the Suits Valuation Act which applies to cases of over-valuation and under-valuation, would have no application.
4. The position was reviewed by a learned Judge of this Court in Nandan Singh v. Debi Din A.I.R. 1914 All. 282 and he came to the same conclusion. One of us in Seth Bankey Lal v. Piare Lal : AIR1926All587 held that where in a revenue suit the value of the subject matter, namely, the rent for one year was less than Rs. 100, an appeal to the District Judge could not be entertained even if the appeal was valued at a higher figure. That judgment was affirmed in Letters Patent appeal, which is reported in Bankey Lal v. Piare Lal : AIR1926All587 . There is accordingly considerable authority in support of the view that the value for the purposes of Court-fee and the value for the purposes of jurisdiction should be identical with the amount of the rent in the next preceding year, when a suit is brought either under Section 44 or Section 84 of the Agra Tenancy Act. In this view of the matter no appeal lay to the District Judge at all.
5. We have therefore no option but to allow this appeal and set aside the decree of the District Judge and direct him to return the memorandum of appeal presented in his Court. We may, however, point out that it would seem prima facie that the jurisdiction of the Commissioner to entertain an appeal would under Section 242(2) depends on the nature of the suits included in group (b) of the 4th schedule and not on the form of the decree actually passed by the trial Court in such suits. It may therefore be well contended that inasmuch as the suit had been filed professedly under Section 44 of the Act an appeal lay to the Commissioner although the Assistant Collector purported to pass a decree under Section 84. It is quite obvious that the defendant would be seriously prejudiced by the alteration of the character of the suit at the last moment as he might well be deprived of the plea of limitation which would be available to him in a suit under Section 84 and not available to the same extent under Section 44 of the Tenancy Act. The defendants should, in our opinion, file the appeal in the Court of the Commissioner afresh.
6. We accordingly allow this appeal and setting aside the decree of the District Judge send the case back to that Court with direction to return the memorandum of appeal to the defendants for presentation to the proper Court. In the circumstances we direct that both the parties should bear their own coats in this Court and in the Court of the District Judge.