Chandra Reddy, J.
1.This petition raises a question relating to court-fee. The petitioners instituted a suit for ejectment of the defendants from the suit house alleging that the defendants who were let into possession of the suit house as licensee refused to vacate the same when demanded. They valued the suit under Section 7(xi)(cc), Court-fees Act.
The recitals in the plaint were that in a partition between the plaintiffs and their brother the suit house was allotted to the share of the latter, that their brother allowed the defendants to Use the suit house as licensees, that after the death of their brother they became entitled to the property and that in spite of the revocation of the licence the defendants refused to surrender possession of the same to them and denied the plaintiff's right.
2. On an objection taken by the Court-fee examiner that the suit was not correctly valued, the question was gone into by the District Munsif and it was decided by him that the value had to be computed for purposes of court-fee under Section 7(v)(e) and not under Section 7(xi)(cc) of the Act. In that view of the matter, the trial Court called upon the plaintiff to give the market value of the property and pay 'ad valorem' court-fee on that basis.
3. In this revision petition, the order of the District Munsif is sought to be revised. In support of the petition Mr. Arayamudha Aiyangar urges that the view of the trial Court is erroneous and that the provision of law applicable to the present case is either Section 7(xi)(cc) or Schedule II, Article 17(B), Court-fees Act and relies on two decisions, one of Allahabad High Court in - 'Ramraj Tewari v. Girnandan Bhagat', 15 All 63 (A) and another of Patna High Court in - 'Mt. Barkatunnisa Begum v. Mt. Kaniza Fatma', : AIR1927Pat140 (B).
A reference to the provisions of the Act shows that Section 7(xi)(cc) cannot have any application to a suit to recover possession of the property from a licensee. It provides a cheap remedy 'for recovery of immoveable property from a tenant, including a tenant holding over after the determination of a tenancy'. A licensee. cannot be included in the term 'tenant'. II fail to see how Section 7(xi)(cc) of the Act has any bearing on the present case. There is therefore no support for this argument either on a plain reading of the section or by way of decided cases. In fact the two decisions relied on. by him furnish an answer to his contention and I will refer to them shortly.
4. Coming to the argument that the suit is incapable of valuation and for that reason comes within the purview of Schedule II, Article 17 (B), Court-fees Act there is not much substance' in it either. It cannot be said that it is incapable of valuation as the relief asked for is the possession of a house which is covered by Section 7(v) of the Act. The two rulings cited by Mr. Ara-vamudha Aiyangar and a number of other cases which will be adverted to immediately clearly bring the case of this description, under Section 7(v), Court-fees Act.
5. Counsel for the petitioners next argued that in any event the case is not governed by Section 7(v)(e) of the Act as the subject-matter in dispute, is not the house itself but something less namely the right of the defendants to remain in the house. According to him, Section 7(v)(e) of the Act applies only when the suit is based on title and not to a case like the present where the plaintiffs revoke the licence and the dispute in the suit is only the right of the licensee to remain in the house.
The basis of the argument is - ' : AIR1927Pat140 (B)'. No doubt the above case lends support to his argument. The learned Judges took the view that a suit for ejectment of a licensee after the revocation of the licence was under Section 7(v), Court-fees Act and the court-fee payable is according to the market value of the subject-matter of the suit. According to them, the subject-matter of the suit is the right to eject the defendants and the value of that right is the value at which the defendants' right to remain in the house under the licence of the plaintiff may be valued.
In other words, it was not the market value of the house but the reasonable valuation placed by the plaintiff on such a right. I am unable to follow the ralionale of this decision. If as stated in that ruling such a case comes under Section 7(v), the only logical conclusion to be reached is that it is governed by one or other of the sub-clauses of that section. It cannot be said in one breath that the case comes within the purview of Section 7(v) and in the next breath that it is not governed by any of the sub-clauses of clause (v).Sub-clause (e) of Clause (v) of Section 7 makes provision for the recovery of possession of garden or house. So a suit for recovery of possession of a house has to be valued under that sub-clause when once it is found to come under Section 7(v), Court-fees Act. Nor am I able to appreciate the force of the observation that the subject-matter of the suit is the right of the licensee to remain in the house. If the basis of the suit is the revocation of the licence I do not see what right the licensee has to remain in the house. He is in the position of a trespasser and he has no right to continue in possession of the house.
In support of their conclusion the learned Judges relied upon a decision of the Allahabad High Court in - '15 All 63 (A)'. That was a suit to eject a tenant at fixed rate on the allegation that the tenant committed acts inconsistent with the purposes for which the land was let. The question incidentally arose whether the suit should be valued as one for possession of land within the meaning of para. 5 of Section 7, Court-fees Act. It was decided that para. 5 of Section 7 applied to such a case. It was further observed that
'the subject-matter cannot be treated as the land itself, as the landlord-plaintiff has through his tenancy, proprietary possession, and what is really sought is to free the land from the possession of the tenants' that is to get rid of the tenants. For the reasons mentioned above I find it difficult to agree with the rule stated therein.
6. Section 7(v) is limited to cases where the subject-matter is either a house, garden or land. If possession of any of them is sought, it must be valued as provided for in that section and possession is made for the recovery of possession of house under Sub-clause (e) requiring computation of court-fees on the basis of the market value.
7. A Bench of the Bombay High Court in - 'Ratilal v. Chandulal' : AIR1947Bom482 (C) expressly dissented from - ' : AIR1927Pat140 (B)'. The view taken by them was that a suit for possession of a house on the allegation that the defendant was in possession as a licensee has to be valued under Section 7(v)(e), Court-fees Act. Repelling the argument that the subject-matter in a case of this kind ought not to be regarded as the entire house with all the rights involved therein but merely one aspect of the house, the learned Judges observed that 'the subject-matter of a suit is what the suit is about. It is not the same thing as the object of the suit.'
8. The same view was taken in a recent case by the Calcutta High Court in - 'Satish Kumar v. Sailabasini Devi', AIR 1949 Cal 621 (D). In -- 'Gajanan v. Rajeswar', AIR 1950 Nag 237 (E) Bose J. expressed his disagreement with the principle enunciated in - ' : AIR1927Pat100 (B)' and reached the same conclusion as the learned Judges in - ' : AIR1947Bom482 (C)', though there is no reference to that case.
I express my respectful agreement with the rule stated by the Bombay High Court in - ' : AIR1947Bom482 (C)' and hold that the present case is governed by Section 7(v)(e), Court-fees Act and court-fee has to be paid on the market, value of the house. It follows that the order of the learned District Munsif is correct and has to be affirmed.
9. In the result, the civil revision petition is dismissed with costs. The petitioners are given one month's time from the date of the receipt of the records in the lower Court for payment of deficit court-fee. The records are to be despatched immediately.