(1) These petitions raise a question of Court-fee. The suits filed by the petitioner, who is the same in all the petitions, were in ejectment, the respondent in each case being the tenant. The plaint in each case alleged that the defendant had accepted the plaintiff as the owner of the property and agreed that he would surrender vacant possession of the suit land after removing the superstructure and that the tenant had put up superstructure. The plaint further stated that the tenancy was governed by the provisions of the City Tenants Protection Act, and, therefore, the requirement of that Act had been complied with by the issue of a proper notice. The prayer in the suits was for a decree that the defendant should put the plaintiff in possession of the suit property and the superstructure thereon on receiving a compensation of Rs. 1000 the market value of the superstructure, and Rs. 2 for the trees and for payment of arrears of rent as may be determined. For the purpose of court fee, the prayer was valued under Sec. 43(2) of the Madras Court fees and Suits Valuation Act, 1955 and a court fee of Rs. 1-12 was paid.
The court-fee examiner was of the view that a total court-fee of Rs. 1-12 was payable and there is no dispute about it. He was further of the view that as the plaint asked for possession of the superstructure on payment of Rs. 1000, the plaintiff should pay additional court-fee on the value of the superstructure namely Rs. 1000. The court-fee examiner's view was accepted by the court below which directed payment of additional court-fee. These petitions are to revise these orders of the court below.
(2) It is contended for the petitioner that the prayer for recovery of possession of the superstructure was but incidental to the prayer for recovery of possession of the property, which was the subject matter of tenancy and, therefore, no court-fee is payable on the value of the superstructure. It seems to me that the contention is well founded. The petitioner does not claim to be the owner of the superstructure and in fact that recital in the plaint is that under the tenancy agreement, the defendant in each of the suits was bound to put the plaintiff in vacant possession of the land. But the question of compensation arises because of the provisions of the City Tenants Protection Act, and in order to comply with the provisions of the Act, the plaintiff according to the averments in the plaint, gave notice to the tenants. In that sense, therefore, the prayer for recovery of possession of the superstructure on payment of Rs. 1000 is incidental to prayer for recovery of possession of the land which was the subject matter of the lease.
(3) The submission make by the petitioner is supported by authority. Reference under Court-fees Act Sec. 5(1). (1900) ILR 23 Mad 84, related to a claim by tenants for improvements in a suit by a landlord for ejectment, which claim was disallowed. In an appeal filed by the tenants for improvements, the question arose as to what was the proper court fee payable on the memorandum of appeal. The appellants there had paid court-fee in accordance with the plaintiffs' valuation. This court held that as the claim for improvements was not the subject matter of the suit but was merely incidental to the decree for possession, the fee payable by an appellant in such a case should be that payable for possession of the land. More or less the same principle was laid down in Haidari Bengum v. Gulzar Bano, ILR 36 All 322: (AIR 1914 All 273). That was also a suit for possession but the defence was that the defendant had a lien for her dower debt. The question, the court had to decide, was as to what was the value of amount of the subject matter of the appeal arising out of the suit. This was answered by the court thus:-
"It is suggested that it is not only the property in dispute but also the dower debt claimed by the appellant. It is perfectly true that it is open to this court to grant a decree to the plaintiff conditional on payment of whatever may be found due to the defendant as her dower debt. But even in that case it will not be a decree which the defendant appellant would be able to put into execution, so as to enable her to recover her debt. It would be merely an attachment of a condition to the decree for possession".
(4) On that view, the court was of opinion that the amount or value of the subject matter of the appeal was nothing more than the property which the plaintiff was seeking to recover and possession of which the defendant was seeking to retain. The principle of these two decisions has application to the facts alleged in the plaints.
(5) The petitions are allowed. No costs.
(6) Petition allowed.