C.M. Lodha, C.J.
1. This revision petition by the plaintiff is directed against the order dated December 13, 1976, by the Additional District Judge, Jalore, by which the learned Judge held that the court-fee paid by the plaintiff on the plaint on a valuation of Rs. 7,000/-, was, insufficient and that he Was liable to pay court fee on Rs. 25,000/-. The main allegation cantained in the plaint is that the defendants had unlawfully taken possession of the land in dispute and had raised unauthorised construction, on it. It was prayed that the! defendants may be directed to remove the unauthorised construction and hand over possession of the land to the plaintiff. The market value of the land was fixed at Rs. 4,000/-, on which the plaintiff paid the court-fee. Besides the relief for possession of the land, plaintiff also prayed for award of mesne profits which he assessed at Rs. 7,000/-. I am not concerned here regarding the relief for mesne profits.
2. The defendants raised an objection that the market value of the land Was Rs. 10,000/-, and the value of the construction thereon was Rs. 15,000/-. Thus, their plea was that the plaintiff was required to pay court fee on Rs. 25,000/-, for possession of the land in suit. A preliminary issue on the point was framed by the trial court and, its burden was placed on the defendants, who were called up an to prove, that the valuation of the suit property was Rs. 25,000/-. To prove this issue, the defendant examined DW. 1 Durga Ram, DW 2 Kalu Ram, DW 3 Nathu khan and DW 4 Sankal Chand. In rebuttal, plaintiff Hazari Mal examined, himself. The statements of DW. 3 Nathu khan and DW. 4 Sarikal Chand pertain to construction standing on the land. As regards the value of the land, we have only the statement of Durga Rani and Kalu Ram from the, side of the defendants and that of the plaintiff Hazari Mal on the other side.
3. The trial court has not discussed the statement of the plaintiff Hazari Mal at all, but has fixed the, market value of the land at the rate of Rs. 12/- per sq ft. on the basis of the statement of Durga Ram, DW. 1 and Kalu Ram DW 2. However, it appears that the lower court has not scrutinized the statement of these two witnesses. I have gone through the in statements and find that no reliance can be placed upon them regarding the market value of the land. DW. 1 Durga Ram admits in cross examination that he does not know on which side is the door of the property in question. He does not know the names of the neighbours of the land. He cannot cite a single instance in which laud in the neighbourhood of the land in dispute may have been sold. In fact, it appears from his statement that there is no basis for his saying that the market value of the land in question is Rs. 10/- to Rs. 12/- per sq. ft. The statement of DW 2 Kalu Ram is no better. In the course of the cross-examination, Kalu Ram has admitted that he has assessed the value of the land at the rate of Rs. 11/- to Rs. 12/- per sq. ft, because there is a lot of demand for laud in that area. He has not given any date on the basis of which he has assessed the value of the land at Rs. 11/- to Rs. 12/- per sq ft Ha was not able to give a single instance of sale of land in the neighbourhood of the land in question. On the other hand, P.W. 1 Hazari Mal, plaintiff, has given a definite instance of sale of land in the same locality according to which the market value of the land comes to Rs. 4/- per sq. ft. it is true that he has not produced a certified copy of the sale-deed, but the burden of the issue was on the defendants, which they have miserably failed to discharge. Since the lower court has not discussed the evidence of the plaintiff at all nor has scrutinized the statements of Durga Ram, DW. 1 and Kalu Ram DW 2, whose statements, as I have stated above, are wholly undependable and unreliable, there is no alternative left to me but to accept the valuation stated by the plaintiff. Accordingly, I set aside the finding of the lower court that the value of the land in question is Rs. 11/- or Rs. 12/- per sq ft. and further hold that the valuation of open land fixed by the plaintiff must be accepted.
4. As regards the court-fee on the construction raised by the defendants, it is sufficient to point out that the plaintiff has not claimed the construction. On the other hand, his case is that the defendants have unauthorisedly raised construction on the land in question which may be demolished and he would have no objection if the defendants are allowed to remove the material. In the facts and circumstances, therefore, the plaintiff has not made a claim for possession of the construction standing on the land in question, but he is claiming possession of the vacant land only. The land in dispute is therefore, vacant land and not the construction raised on it by the defendants.
5. In Durga Das and Ors. v. Nihal Chand and Ors. A.I.R. 1928 Lahore 852, it was observed that where the claim in a suit is for possession of the land and not of the buildings on the land, it is the market value of the land, having regard to its nature at the time of institution of the suit irrespective of the buildings, that determines the jurisdiction of the court and the amount of the court-fee stamp payable on the pi-tint is also to be calculated on the same. In my opinion, the lower court was not justified in calling upon the plaintiff to pay court fee stamp on the value of the construction alleged to have been unauthorisedly raised by the defendant's, regarding which the plaintiff has made no claim. In this view of the matter, there was no justification for asking for court fee on the valuation of the construction.
6. Accordingly, I allow this revision petition set aside the impugned order by the AdditionalDistrict judge, Jalore, dated December 13, 1976, and hold that the court-fee stamp paid by the plaintiff on the plaint is proper and sufficient. In the circumstances of the case, there will be no order as to costs.
7. Let the original record of the case be returned to the District Judge Jalore forthwith for proceeding according to law.