1. This matter comes to ma as taxing Judge in pursuance of the order of the Bench which held that the Bench has no jurisdiction to deal with the question of deficit, relating to the appeal memorandum in the High Court. I proceed to deal with it treating the order of reference by the Registrar to the Bench as an order of reference to me as the taxing Judge by the taxing officer; the Registrar being also the taxing officer. The suit out of which this appeal arises was brought in the following circumstances as stated in the order of reference.
'In execution of the decree obtained against the plaintiffs' father who is defendant 3, the disputed property has been sold away in court-auction at the in stance of the decree-holder, the late husband of defendant 1. The decree-holder purchased the property and also took delivery of possession through Court. In the suit out of which this appeal arises, the plaintiff questioned the decree and the subsequent proceedings on the ground that the loan was contracted for illegal and immoral purposes. They therefore pray for declaration that the decree and the subsequent proceedings are not binding and for recovery of possession of the disputed property. Defendant 2 was impleaded as a subsequent trespasser.'
2. The plaintiffs paid in the lower Courts ad valorem court-fee of Rs. 226-4-0 valuing the property at ten times the assessment of Rs. 22. 10-0. This was accepted by the trial Court on a specific issue raised before it regarding the valuation and the sufficiency of the court-fee. The property in dispute is Government jerayoti land of the extent of 7.51 acres and the learned Registrar being of the opinion that the value was inadequate re-assessed the value of the subject-matter of the suit at us. 2082 that being the amount for which the decree-holder the husband of defendant I purchased the suit property at court auction as appears from the sale, certificate which has been marked as an exhibit in the case. The appellants contest this valuation and hence this reference.
3. In the trial Court the statutory valuation of 10 times the assessment was accepted following the cases in Venkatasiva Rao v. Venkatanarasimha Satynarayana Murthy, A. I. R. (19) 2 1932 Mad. 605 : (56 Mad. 212). Annamalai Mudaliar v. Krishtappa Mudaliar, A. I. R. (22) 1936 Mad. 66 ; (58 Mad. 385). This statutory valuation applies to oases that fall under cl. 5, Schedule , Court-fees Act, that is, suits for possession. In Madras a suit for declaration and possession is treated normally as only a suit for possession, It appears however to be the settled practice of the Patna High Court to treat a suit for declaration and possession as a suit for declaration and consequential relief and to requite ad valorem court-fee on the market value to be paid. See Brij Krishna Das v. Murli Rai, A. I. R. (7) 1920 Pat. 656: (4 pat. L.J. 703); Bam Sekhar Prasad v. Sheo Nandan Dubey, A. I. R. (10) 1923 Pat. 137 : (2 Pat. 198) and Sital Prasad v. Ramdas Sah, A, I. R. (26) 1939 pat. 274:(l8 pat. 267), Under Schedule , cl. (4) (c) the party is no doubt entitled to value the relief at his option, but the Patna practice insists that the litigant cannot be allowed to place an arbitrary valuation on the relief and that where the valuation 'made by the party is grossly disproportionate to the market value, the Court can require the ad valorem court-fee on the market value to be paid. While no doubt the statutory valuation is not applicable to such oases and while it may be legitimate to correct gross undervaluation and to prevent mere arbitrary valuation, it may be a question for consideration whether the Court is entitled to substitute its own valuation for that of the litigant and deprive the party of the option that the statute has given to him of putting his own valuation. However, that may be in a matter of this kind the practice which has been all along been prevailing in this Court, namely, the practice of the Patna High Court should be followed. Following that practice, since the value of Rs. 226-4-0 is grossly inadequate as compared with the market value of the suit-property, that valuation must be rejected, The taxing officer has therefore quite properly adopted the price fetched at the Court auction sale, namely, Rs. 2082 as the market value with referance to which the court-fee on the appeal memorandum is to be assessed. Before the taxing officer a contention appears to have been raised that since the plaintiffs would in any case succeed only in respect of 2/3rds of the suit-property, the court-fee need be paid only on 2/3rds of the value as fixed. The appellant has not chosen to confine his appeal memorandum to 2/8rds share. What the court-fee he will have to pay if he so chose, it is unnecessary to Say. As the appeal memorandum relates to the entire suit property as it now stands, the appellant has to pay the court-fee on the full value of the property as now determined. The appellant is therefore directed to pay deficit court-fee on the appeal memorandum on the basis of the above valuation within two weeks from the date of the reopening of the Court after the summer recess. The office will intimate to the appellant's counsel the exact deficit that he has to pay before the Court closes for summer recess.