Madhavan Nair, Officiating C.J.
1. The legal representative of the 1st plaintiff is the appellant. In this second appeal the question is raised as regards the court-fee that should have been paid by the appellant on the memorandum of appeal that he presented to the lower Court. As there is a conflict of authority on the question the case has been posted before us for decision at the instance of Lakshmana Rao, J., before whom the second appeal came originally for hearing.
2. The facts are these : The plaintiffs sued for recovery of possession of properties from their tenants. The trial Court decreed the suit, but on condition that they should pay Rs. 8,000 for value of improvements. The plaintiffs appealed against the compensation amount that they were ordered to pay. According to them no compensation should have been decreed against them. They valued the appeal treating it as one for possession ignoring the fact that the subject-matter of the appeal was the value of improvements that they were called upon to pay and not the right to recover possession of the property. The District Judge ordered that court-fee should be paid by the plaintiffs-appellants on the value of improvements. As that court-fee was not paid in time the appeal was rejected.
3. In second appeal it is contended that the lower Court was wrong in ordering that the appellants should pay court-fee on the value of improvements and reliance is placed on the decision in Reference under Court-Fees Act, Section 51. In that case the plaintiff sued for recovery of land from defendants 1 to 3. The contesting defendant (defendant No. 2) contended that the land was not liable to be surrendered and also claimed compensation for improvements. The District Munsiff disallowed the claim for improvements and decreed the surrender of the land. The contesting defendant appealed and paid for court-fee, a sum which was the fee payable oh the value of the land. The question was whether the value of improvements should also be taken into account for the purpose of levying the court-fee, the subject-matter of the appeal being the same as that in the suit, - the question of improvements being raised incidentally. The learned judges held that the value of the improvements should not be taken into consideration for calculating the court-fee. They held that, as the claim for improvements was not the subject-matter of the suit but was merely incidental to the decree for possession and on grounds of convenience the fee payable by the appellant should be that payable in a suit for possession of land. They also stated in the judgment:
We think the proper answer to the reference is that on appeal even where the only question raised is as to the value of the improvements, the appellant should not be called upon to pay any fee other than that payable in a suit for possession of land.
4. It is clear that on the facts the present case is different from the decision in Reference under Court-Fees Act, Section 51, in as much as the question as regards the right to possession has not been raised in appeal and could not be raised in the present case; and the only question appealed against is as regards the value of improvements. Mr. Kuttikrishna Menon relies on the observation in the judgment we have just quoted that
on appeal even where the only question raised is as to the value of the improvements, the appellant should not be called upon to pay any fee other than that payable in a suit for possession of land,
in support of his argument that he should not be called upon to pay court-fee on the value of improvements. It is clear that the observation of the learned Judges is only obiter and it was not necessary for them to have made that observation for the decision of the case before them. This observation was treated as an obiter dictum in Paidal Nayar, In res, where the specific question now raised in the present appeal arose for decision. In that case the plaintiff filed a suit for redemption of a kanom. He obtained a decree for recovery of possession of property subject to the payment of the kanom amount and the value of improvements. In appeal there was no dispute as to the plaintiffs' right to redeem, but he appealed against the value allowed for improvements-as in the present case. The question was, what was the proper court-fee payable on the memorandum of appeal. Lt was held on an exhaustive consideration of the authorities that the plaintiff should pay court-fee in proportion to the value of the relief he sought in appeal and that the court-fee payable in the case before them must be determined in accordance with the value of improvements which the appellant sought to avoid. We accept the reasoning adopted by the learned Judges and have nothing to add to it. They have given sufficient reasons to show why the appellant should pay court-fee on the value of improvements when that is the only question raised in the appeal. The A decision Pathumma Umma v. A. Mohideen : AIR1928Mad929 refers to In re Paidal Nayar : AIR1926Mad225 with approval and treats the observation in Reference under Court-Fees Act, Section 53, as an obiter dictum. We agree with the reasoning of the learned Judges in Paidal Nayar In re : AIR1926Mad225 , and hold that in a case where in appeal the only question involved relates to compensation for (improvements and no question for possession is raised, the appellant should pay court-fee on the value of improvements. The decision of the lower Court is right and this second appeal is dismissed with costs.
5. We give the appellant one month's time from to-day to pay the proper court-fee to the lower Court - as we observe that the appellant had filed a Civil Revision Petition to this Court questioning the order of the lower Court before the expiry of the 5th August, which was the ultimate time allowed to him by the lower Court to make the payment. If the court-fee is not paid in time the appeal will be rejected.