1. This is a revisional application under Section 115 of the Code of Civil Procedure. The question raised relates to the valuation of the suit in question for the purpose of court-fees. The plaintiff, who is the petitioner in this Court, instituted the suit for specific performance of a contract for exchange and for permanent injunction restraining the defendants from interfering with his possession. The suit land measures about 72 Bighas in several lots. According to the petitioner he is a refugee from East Pakistan and he had considerable lands in East Pakistan and he arranged with Mobarak Hossain, defendant No. 1, to exchange Mobarak's land in the district of Nadia in West Bengal with the petitioner's land falling in what is now Kusthia district in East Bengal, and deeds of agreement were actually executed between the parties and possession of the respective lands was delivered. On the basis of these arrangements Kalachand, the plaintiff, obtained possession of the suit hinds with which we are concerned, and delivered possession of his lands of Kusthia district to defendant No. 1, Mobarak Hossain. According to the plaintiff the deeds of exchange were to be executed separately in India and Pakistan and ostensibly they were to be executed as sale deeds with a consideration of Rs. 2150/-. In that view the plaintiff valued the suit at Rs. 2150/- and paid court-fees thereon. This would be the correct valuation if the case be governed by Section 7(x)(a) of the Court-fees Act.
2. Some defendants other than defendant No. 1, Mobarak Hossain, appeared in the case and claimed that they were in possession of several lots out of the suit lands on the basis of subsequent sale deeds executed by defendant No. 1, Mobarak Hossain. They claimed that the suit had been insufficiently valued and that the case would not be governed by Section 7(x)(a) of the Court-fees Act but that the suit should be valued on the subject-matter of the suit, that is on the value of the 72 Bighas of lands. The learned Munsif agreed with the contentions of the appearing defendants and he held that the valuation given by the plaintiff in the plaint was insufficient and he directed that a commissionbe issued under Section 8-C of the Court-fees Act for ascertaining the valuation of the suit property.
3. Against that order the plaintiff as petitioner has filed this revisional application.
4. The contention of the plaintiff petitioner is that he is in actual possession of the entire suit land, having been put into possession by Mobarak Hossain at the time when the agreements for exchange . were executed between the parties. He claimed that the defendants other than defendant No. 1 also tried to interfere with that possession and therefore he asked for injunction for restraining them from such interference. It appears that there was a prayer for temporary injunction; and after the hearing of the parties the learned Munsif made a prima facie finding that the plaintiff was in possession and granted injunction restraining the defendants from interfering with such possession. If the plaintiff's case be true, he is not seeking the relief of obtaining possession in the suit lands which are extensive in area but he is only asking for the relief of having a valid title deed in respect of the land in which he has already been put in possession by the previous owner under the agreements of exchange. In such circumstances I am unable to agree with the view of the learned Munsif that the suit should be valued on the value of the entire subject-matter of the suit, that is the value of the entire land. The learned Munsif relied mainly on a Madras ruling In re Amuluru Venkamma : AIR1944Mad252 , where it was held that neither Section 7(x)(a) nor Article 17-B of Schedule II of the Court-fees Act should apply in such a case but that the suit should be valued on the subject-matter under Schedule I, Article 1, This was the decision by a single Judge and moreover all the facts do not appear from the judgment which consists of a few lines only. There is nothing to show whether the plaintiff in that case who sought specific performance of an agreement for exchange had already been put into possession of the land or he wanted to obtain possession of the land after execution of the deed of exchange. If he wanted possession then it would be quite right to hold that the suit should be valued under Article 1, Schedule I of the Court-fees Act, that is ad valorem court-fees should be paid on the value of the land which the plaintiff wanted to obtain by execution of the deed of exchange. But in a case where the plaintiff is in possession, according to him, it would not, in my opinion, be correct or fair to ask him to value the suit on the valuation of the entire land. The learned Advocate, for the plaintiff petitioner has urged that the case would really come under Article 17 (vi) of Schedule II of the Court-fees Act as applicable to Bengal, which provides that in every other suit 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 the court-fees would be Rs. 15/-. In support of his contention the learned Advocate for the plaintiff petitioner has referred to the case of Biraja Charan v. Sailaja Charan : AIR1939Cal155 , where it was held that Article 17 (vi) of Schedule II of the Court-fees Act would apply in a suit for specific performance of a contract for execution and registration of Trust Deed in respect of the common property of the plaintiff and the defendant. The subject-matter of that case was, however, quite different and the ruling cannot apply to the facts of the present case. It was already been mentioned that since two documents as of sale were originally agreed to be executed in India and Pakistan respectively and the ostensible consideration was agreed to be shown as Rs. 2150/- the case should be considered to come under Section 7(x)(a) of the Court-fees Act and therefore the valuation of Rs. 2150/- as put by the plaintiff-petitioner must be accepted as correct. If in the course of the suit the plaintiff should seek to add the prayer for recovery of possession, at that stage the trial Court would be quite right to ask the plaintiff to re-value the suit on an ad valorem basis.
5. The Rule is, therefore, made absolute andthe valuation of the suit as made by the plaintiffpetitioner is directed to be accepted. In the circumstances the parties will bear their own costs.