R.C. Mitter, J.
1. The defendant is the petitioner before me. The plaintiff instituted a suit to recover possession of certain property described in the schedule to his plaint. There had been a revenue sale. He was the former proprietor; and his case in the plaint is that the revenue sale is illegal, a nullity and has not passed title to the defendant. Secondly, ha prays for setting aside the revenue sale in any event; and his third prayer is for recovery of possession.
2. The suit is a suit for recovery of possession and for the purpose of Court-fees and valuation it comes within Sub-section 5, Section 7, Court-fees Act. The question is whether under Clauses (a) or Clause (e) of that Sub-section such valuation is to be made. In the schedule to the plaint the land is described as 'garden land together with trees, etc.' The land is comprised in holding No. 39, Touzi No. 1298/2833 of the Collectorate of the 24-Parganas. Of this holding a separate revenue has been assessed at Rs. 21-3-5. The plaintiff's valuation has been arrived at by multiplying the said sum by 10; and the Court-fee was paid on the said sum. The defendants stated that the Court-fee was to be paid not on the basis of revenue assessed but on the basis of the market value, and he said that the market value was more than Rs. 5,000 and so the suit was beyond the jurisdiction of the Munsif at Alipur. The learned Munsif held that the value should be computed in accordance with Clause (e), Sub-section 5, Section 7, Courtfees Act. He also held that as the market value exceeded his jurisdiction the plaint should be returned for presentation to the proper Court and he ordered the return of the plaint.
3. An appeal was taken by the plaintiff and it was heard by the learned Subordinate Judge. When the suit was pending in the Court of the Munsif, the plaintiff by way of amendment wanted to strike out the words 'garden' and 'trees, etc.' and the learned Subordinate Judge held that that amendment ought to have been allowed, and if that amendment be allowed, the suit would be a suit for recovery of land and it would come under Clauses (a). Para. 1, Sub-section 5, Section 7 begins by saying that in suits for possession of land, house and gardens the Court fees are to be paid according to the value of the subject-matter. Then follows certain clauses which deal with the method of computation of the value. Immediately after para. 1, it is said: where the subject-matter is land, the method of valuation is to be as indicated in four clauses (a) to (d). Reading these clauses and Clause (e) it appears to me that for the purpose of computing valuation of the subject-matter in a land for possession, the legislature has drawn a distinction between the case where the subject matter is land, and where the subject matter is a house or garden. If the subject-matter of the present case is really a garden, in my opinion it will come under Clause (e), Sub-section 5, Section 7, Court-fees Act, and the Court-fee will have to be paid on the market value of the garden and not on the basis of annual revenue of the land. If the subject-matter is a garden, the application of the plaintiff for amendment would have no bearing upon this question.
4. Inasmuch as, it has not been held whether the subject matter is land or garden, I consider that the question must be gone into after giving the parties an opportunity to lead evidence. If the Court comes to the conclusion that the property is a garden it will direct the plaintiff to file the plaint in proper Court. If not the suit will be retained in the Court of the Munsif. To have this question decided I remand the case to the Court of first instance with liberty to the parties to adduce evidence on this point. The rule is made absolute. Costs of this rule will abide the result, hearing fee one gold mohur.