1. The petitioner is a landholder and he sues the defendants, who occupy a holding under him, to eject them from part of a tank-bed upon which he alleged that they had encroached. A preliminary issue has been framed as to the correct court-fee to be paid, and this revision petition has been presented against an order requiring payment of an ad valorem fee under Section 7, Clause 5(c), Court-fees Act, which provides that, where land pays no revenue, the value is to be taken as fifteen times the net profits, or if no net profits have arisen therefrom, as the value of similar land in the neighbourhood. It is contended that the appropriate provision is Article 17-B, Schedule 2 of the Act, which relates to plaints in suits where it is not possible to estimate at a money value the subject matter in dispute and which is not otherwise provided for by this Act.
2. The contention is supported by two separate arguments. The reliefs asked for were the eviction of the defendants, an injunction restraining them from interfering with possession and a mandatory injunction directing them to remove the mud which, to make the land cultivable, they had thrown upon it. It is suggested in the first place that the substantial relief asked for lies in the injunctions requiring the defendants to restore the tank-bed to the status quo ante and to cases from interfering with it, and not in the prayer for possession which is merely ancillary. But recovery of possession, it can scarcely be gainsaid, is an essential element of any suit filed to turn out an encroacher, and I do not think that in such a case the plaint can be deemed to fall outside the scope of Section 7 merely because other reliefs are also claimed.
3. The other argument is that Article 17B, Schedule 2 applies, and not Section 7-(V) because the land is incapable of valuation. The learned District Munsif has called upon the plaintiff to state what net profits arose upon the land during the year preceding the suit, and has added that if no net profits so arose, court-fee must be paid with reference to the value of similar land in the neighbourhood. Now it is clear, I think, that since the plaintiff claims the land as tank-bed, it is as tank-bed that it must if possible be valued, and not as the cultivated land Into which, as he alleges, it has been temporarily and wrongfully converted. But no net profits arise from an isolated area of tank-bed as such. Nor I think can it be assessed to a value by comparison with other similar lands, i.e., tank-beds, in the neighbourhood. All tank-bed lands are of value only in the degree to which they subsetve the requirements of other, and cultivable, lands by contributing to their irrigation. Regarded as separate entities it is not, I think, possible to place a money value upon them, because they are not so saleable. The principle for determining the market-value of property under the Court-fees Act, has been laid down in Rajagopal Naidu v. Ramasubramanaia Iyer 1924 Mad. 19, in the case of a temple, where it was held that as there can be no market for a temple as such, so there can be no market-value for it. A temple has no market-value as it is inalienable, and a tank-bed has no market-value because it is unsaleablec except as accessory to other property. No means exist for ascertaining what in the event of such a sale its value would be. Accordingly it is impossible to apply the provisions of Section 7-C(V), because the value of the subject matter is indeterminate. The only course is to assess the court-fee under Article 17-B. I allow the petition with costs, set aside the District Munsif's order, and direct him so to assess it.