G. Ramanujam, J.
1. When the above appeal filed by some of the defendants in O.S. No. 30 of 1974 on the file of the Sub-Court, Ramanathapuram at Madurai was taken up for hearing, the learned Counsel for the respondent-wakf Board raised a preliminary objection that proper court-fee had not been paid on the memorandum of grounds of appeal and unless the appellants pay the requisite court-fee, the appeal cannot be proceeded with. The learned Counsel for the respondent contended that the appellants have paid a fixed court-fee of Rs. 15 in the appeal memorandum instead of paying the court-fee under Section 25(a) of the Court-fees and Suits Valuation Act read with Section 52 and that the concession of paying a court fee given by G.O. Ms No. 1742, Home, dated 9th July, 1969 is available only to the Wakf Board when it files the suit for recovery of possession of wakf property and that the defendant in a suit filed by the Wakf Board cannot take advantage of the said concession and pay a fixed Court-fee. The learned Counsel relies on a judgment of a Division Bench of this Court in A. S. No. 342 of 1971 wherein under similar circumstances, the defendant who had filed an appeal as against the judgment in a suit filed by the Wakf Board was directed to pay the court-fee ad valorem on the value of the appeal on the ground that he is not entitled to pay the fixed court-fee referred to in the Government Notification giving concession in regard to suits filed by the Wakf Board alone We are in entire agreement with the view taken in that case by the Division Bench. The said Government order reducing the court-fee payable by the Wakf Board in a suit filed for recovery of possession of wakf property from third parties to Rs. 15/-will not apply to the defendant in a suit who files an appeal against the decision rendered in such a suit. Section 52 of the Tamil Nadu Court-fees and Suits Valuation Act states that the fees payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject matter of the appeal. Explanation (1) to that Section is as follows:
Whether the appeal is against the refusal of a relief or against the grant of the relief, the fee payable in the appeal shall be the same as the fee that would be payable on the relief in the Court of first instance.
The explanation does not use the expression 'the fee that was paid in the Court of first instance' but uses the words 'the fee that would be payable on the relief in the Court of first instance'. The fact that the Wakf Board was enabled to pay the fixed Court-fee of Rs. 15/- in a suit filed for recovery of the wakf property will not enable the defendant when he files the appeal against the judgment in that suit to pay the same fixed court-fee as that will not be the fee payable on the relief in the Court of first instance if the suit were to be filed by the defendant. In this view of the matter, we are of the view that the appellant herein has to pay court-fee ad valorem on the market value of the property under Section (SIC)5(a) as the suit has been filed for declaration of title and for possession of the property.
2. The appeal has been valued for the purpose of jurisdiction and court-fee at Rs. 25,100 which is the value of the suit properties mentioned in the plaint. The appellants, therefore, have to pay ad valorem court-fee on the value of the appeal, namely, Rs. 25,100.
3. The appellants undertake to pay the court-fee if some time is granted for that purpose. The appellants shall pay the deficit court-fee on or before 30th June, 1980.
4. This appeal coming on for further hearing as Friday the 22nd day of August, 198(SIC) in the presence of Mr. R. Nadanasabapathy, Advocate for the Appellant and Mr. S. M. Hameed Mohideen, Advocate for the respondent, the Court made the following Order.
5. By an order dated 16th April, 1980, we directed the appellant to pay the deficit court-fee on the memorandum of grounds of appeal on or before 30th June, 1980. But so far the deficit Court-fee has not been paid. The learned Counsel for the appellant says that the appellant is unable to pay the court-fee. Hence the appeal is dismissed for non-payment of the deficit court-fee. There will be no order as to costs.