Sundar Lal, J.
1. This is a suit for the ejectment of tenants under Section 57, Clause (6), of the Tenancy Act of 1901. The plaintiff is the zemindar of the village and the defendants are ex-proprietary tenants, whose holding consists of seven plots of land for which a rent of Rs. 44 per annum is payable. The suit was filed in the Court of the Assistant Collector of the first class who decreed the plaintiff's claim. The defendants preferred an appeal against the decree of the Assistant Collector to the District Judge under Section 177 of the Tenancy Act. Under that section an appeal lies from decrees of Assistant Collectors of the first class in suite included in group B of the Schedule attached to the Rent Act, when the amount or value of the subject-matter exceeds Rs. 100.' This was a suit falling under group B and if the amount or value of the subject-matter exceeded Rs. 100, the defendants had an appeal under that section to the District Judge. When the appeal came up for hearing before the District Judge, the respondent urged that no appeal lay to him as the value of the subject-matter was below Rs. 100. That objection was overruled by the Court below. The learned Judge proceeded to hear the appeal on the merits and dismissed it. The defendants have appealed against the decree to this Court and on the appeal coming on for hearing, Mr. Agarwala on behalf of the plaintiff-respondent has urged that no appeal lay to the Court below and that the decree of the Court below dismissing an appeal ought to be affirmed on that ground. The question, therefore, is whether an 'appeal lay to the Court below.
2. The decision of the question turns upon the question, what is the value of the subject-matter of the suit? The rights of tenants who are ex-proprietary tenants of their holding, are incapable of having a market value as the right itself is untransferable in law. Section 8 of the Suits Valuation Act, however, prescribes how the value of certain suits for the purpose of jurisdiction is to be determined. Under Section 8 of that Act it is enacted that in suits other than those referred to in the Court Pees Act of 1870, Section 7, paragraphs 5, 6, 9, and 10, Clause (d), where Court-fee is payable ad valorem under the said Act, the value as determined for the computation of Court-fee and the value for the purpose of jurisdiction shall be the same. In other words under this section, the express object of which was to determine the value for the purpose of jurisdiction in cases coming within a certain class, the valuation on, which Court-fee is payable under the law shall be the valuation for the purpose of jurisdiction also. The question then is whether this case falls within the class of cases referred to in this section. Under the Court Fees Act as amended by Act VI of 1905 under Clause XI (cc) of Section 7, suits between landlords and tenants for the recovery of immoveable property from the tenants have to be valued for the purpose of payment of Court-fees upon the rent payable for the year next before the date of presenting the plaint. This was a suit between landlord and tenant. It was a suit for the recovery of immoveable property from the tenant and for the purpose of payment of Court-fee the valuation of the suit was Rs. 44, which was the rent payable for the year next before the date of presenting the plaint. Court-fee was paid by the plaintiff upon that valuation and according to paragraph 4 of the plaint this was the value of the suit, and the defendants also have paid Court-fee on the same valuation both in this Court and in the Court below. Under Section 8 of the Suits Valuation Act, therefore, the same must be taken to be the valuation for the purpose of jurisdiction and this suit, therefore, being valued at less than Its. 100, no appeal lay to the Court below.
3. Mr. Sawhny, however, has relied upon, certain cases to show that the valuation really exceeded Rs. 100 and that the case fell under sub-clause V of Section 7 of the Court Fees Act. The first of these cases is the case of Ram Raj Tewari v. Girnandan Bhagat 15 A. 63 : A.W.N. (1892) 240. That was a case before the amendment of the Court Fees Act by Act VI of 1905. Under the Court! Fees Act as it then stood, there was no clause expressly dealing with cases of this class except perhaps paragraph 5 of Sub-section 7. In the absence of any other clause the Court was of opinion that the case fell within the purview of Sub-clause 5. It held that the Court-fee, therefore, was payable on the value of the tenant's right and the jurisdiction of the Court depended upon the valuation of the tenancy. If the Act had not been amended by giving suits of this class a special place in Clause XI (cc) of Section 7, that ruling would have been exactly in point and I would have followed the rule laid down in that case; but since the amendment, it must be held that case does not fall under Sub-clause V, but under Sub-clause XI of Section 7 of the Act.
4. The next case is that of Radha Prasad Singh v. Pathan Ojha 15 A. 363 : A.W.N. (1893) 148. That case has been relied upon by Mr. Agarwala. He has urged that the valuation put in the plaint, viz., Rs. 44, was final and governed the question of valuation for the purposes of the appeal. The case is quite in point as far as it goes, but it is unnecessary to rely upon it as the valuation for the purpose of jurisdiction is now to be the same as that for the purpose of Court-fees.
5. The third case relied on is the ruling of the Full Bench in Duryao Singh v. Bharat Singh 3 Ind. Cas. 562 : 6 A.L.J. 905 (F.B.) : 6 M.L.T. 311 : 32 A. 19. The question in that case was about the Court-fee payable in a suit for pre-emption of the kind referred to in that case. The question now before the Court did not arise. It is true that the ruling in the case of Ram Raj Tewari v. Girnandan Bhagat 15 A. 63 : A.W.N. (1892) 240 is referred to there. That ruling, as I have already pointed out, was perfectly correct under the law as it then stood, and under the law as it now stands after 1905, the case has no bearing. I regret I am constrained to come to the conclusion that no appeal lay to the Court below.. The Act of 1905, which was intended to relieve the landlords of the necessity of paying Court-fees under Clause 5 of Section 7 and of thus relieving a tenant who may be ultimately liable of paying it as portion of the costs in the case if the suit be decreed, has now the result of taking away a valuable right of appeal which the law before the amendment was believed to give to the landlord and the tenant whenever the real valuation of those rights exceeded Rs. 100. In making the amendment, it may be that the provisions of Section 8 of the Suits Valuation Act were not before the mind of the Legislature, but I have to apply the law as it is. I must take the valuation for jurisdiction to be the same as the valuation for Court-fees, and must hold that this suit being below Rs. 100 in valuation, no appeal lay to the Judge and that he ought to have dismissed the appeal on that ground. The Tenancy Act, I understand, is now before the Legislature for re-enactment and amendment. The matter is one for the Legislature to consider. I, however, have no option but to affirm the decree of the Court below, dismissing the appeal on the sole ground that no appeal lay to that Court. I make no order as to costs.