(1) This a revision application by the plaintiff from the order dated the August 31 1964 of the First Class Subordinate Judge of Delhi. the plaintiff has alleged in the plaint that Shanti Devi and he have been tenants of the premises under or about January 16, 1964, Banwari Lal Defendants in collusion with Shanti Devi took illegal possession of the premises in question and handed over possession of the same to the Rameshwar Dass Jain and Ghamandi Lal, defendants obtaining a resent not in his favor from them. The plaintiff has further averred that the three defendants are in illegal occupation of the premises. He sues the three defendants for possession of the premises in question which is a godown.
(2) The plaintiff has paid court-fee on the yearly rental value of the godown under S. 7(xi)(e) of the raised an objection to the property court-fee that should have been paid by the plaintiff in the suit saying that the allegations in the plaint bring the suit of the plaintiff under S. 7(v)(e) and so the court free paid should have been on the market value of the godown. The stand taken by the defendants has prevailed with the learned trial Judge who has directed the plaintiff to make amendment in the plaint and to pay court-fee ad valorem on the market value of the godown.
(3) The only question for consideration is whether court-fee is payable by the plaintiff under S. 7(xi)(e) of 7(v)(e) of act 7 of 1870 in the allegations in the plaint for on the question of court-fee it is those allegation alone that have to be taken into consideration.
(4) Section 7(v)(e) is in the form--
'The amount of fee payable under this act in the suits next hereinafter mentioned shall be computed as follows:--(e) where the subject-matter is house or garden:'--According to the market value of the house or garden:
and S. 7(xi)(e) reads--
'In the following suits between landlord and tenants; (e) to recover the occupancy of immovable property form which a tenant has been illegally elected by the landlord--according to the amount of the rent of the immovable property to which the suit refers payable for year next before the date presenting the plaint.'
If the present is a suit by a tenant against the landlord then obviously it is S. 7(xi)(e) that alone applies but if it is either not a suit between landlord and tenant or is a suit which can be considered as between tenant and landlord with some other persons which means that while the landlord is a defendant to the suit the claim of the tenant as a plaintiff against the other person is against them as trespassers then obviously it is S. 7(v)(e) that applies. In the latter case the claim against ht either persons is not on account f any relationship arising out of the tenancy but just for possession of the property on the ground that those other persons have no view that if the facts alleged in the plaint are as by the present plaintiff that the initial dispossession or eviction of the tenant was by the landlord then eve if subsequently the landlord has inducted other persons on the property, when the tenant claim possession of it within limitation again the landlord making those other persons as parties to the suit in substance the suit is no more than a suit between a tenant and a landlord those who hold the property under the landlord in the thing that if nothing else should happen a tenant able to evict such person in execution for they have no right of their own to remain in possession of the property except through the landlord whose right is subject to the decree obtained by the tenant. It is only when a person other than the landlord as a defendant to suit can set up his independent title against the tangent that it would be a suit which could not strictly come under S. 7(xi)(e). But where a their person cannot set up any title except under the landlord and particularly as in the facts of this after wrongful act of the landlord in dispossessing the tenant and is begin made a pretty to the suit that leaves the suit still one between a tenant and a landlord. On this view the order of the learned trial Judge cannot be sustained and the court-fee paid by the plaintiff has been correct under S. 7(xi)(e)
(5) Now for some of the cases cited by the learned counsel for the parties. There is Furzand Ali v. Mohanth Lal Puri ILR 32 Cal 268 in which two landlord collusively executed a lease deed in favour of a third person and then all the three dispossessed the tenant. The learned Judges held it was not a case under S, 7(xi)(e) I think on the facts it is obvious that it could not be for the dispossession was not by the landlord alone and dispossession by third person was an independent act of his own against whom the learned Judges in Secy. of State v, Dinshaw Navorji AIR 1925 Sing 275 and was not followed on the ground that in the case the third party has come into the picture after the landlord had disposed the tenant. The learned Judges held that it was case of S. 7(xi)(e). This last mentioned case has not been and the first mentioned case has been followed in Bhagobai Devsingh v, Shiamlal Dwarkaprasad AIR 1933 Nag 312 Kuppuswami Pillai v. Taj Fraksha Taikkal Estate Air 1946 Mad 322 and Mohammed Yusuf v, Muthasaddilal AIR 1951 Hyd 53; in the last mentioned case some other cases on the same lime have been referred to. But in none of these cases the plaintiffs allegation was a clear allegation as in the present case that the landlord dispossession him and after dispossessing him inducted third persons into the property. So on facts none of those cases in near the present case. No doubt in those case the learned Judges did not follow, AIR 1925 Sing 275 but to my mind that makes no difference because this is a matter which has to be decided on the allegations of the plaintiff in a particular plaint. In the present plaint the plaintiff has clearly alleged that he was dispossessed by his landlord. His cause of actin immediately arose against the landlord. If the landlord after that inducted others on to the property that has not given a new or a separate causes of action to the plaintiff. Those others must go to vacate the property should the plaintiff succeed against the landlord as the landlord must do have no claim to the property against the plaintiff except the claim of the landlord. Any other approach to facts like these would mean that a landlord can by the device of introducing a third person on to the prohibitive amount if he should want to recover the property which would mean that a landlord can compel a tenant into an unjust situation out of which the benefit goes so far as the landlord is concerned the tenant is placed at a disadvantage. I do not think that the Court-fee Act is meant to be such a tool in the hands of a party. On the facts of this case I have no doubt in my mind that it is S. 7(xi)(e) that applies and the plaintiff has paid the correct court-fee on the plaint. This revision application is accepted and the order of the learned trial Judge is set aside. There is no order in regard to coast in this revision application.
(6) Revision allowed.