1. The question of law raised in this appeal is of considerable importance, and relates to the amount of Court-fee payable upon a plaint presented for the institution of a suit under Section 108 of the Bengal Tenancy Act., The first paragraph of that section provides, that a suit may be instituted before a Revenue Officer at any time within three months from the date of the certificate of the final publication of the record-of-rights under Sub-Section 2 of Section 103 A; such suit is instituted by the presentation of a plaint on stamped paper for the decision of any dispute regarding any entry which a Revenue Officer has made in, or any omission which the said officer has made from, the record, whether such dispute is between the landlord and tenant, or between landlords of the same or of neighbouring Estates, or between tenant and tenant, or as to whether the relationship of landlord and tenant, exists, or as to whether land held rent-free is properly so held, or as to any other matter ; and the Revenue Officer before whom the suit is instituted has to hear and decide the dispute. The Courts below have concurrently held that a suit of the description instituted under Section 108 of the Bengal Tenancy Act is in its essence a suit for a declaratory decree, in which no consequential relief is asked, and that consequently under Article 17 Clause (3) of the second Schedule of the Court Pees Act of 1870, the fee payable on the plaint is Rs. 10. The landlord who instituted the suit in the case before us, was called upon by the Revenue authority before whom the suit was commenced, to pay the necessary fees. He failed to carry out the order; the result was that the suit was dismissed, and the order of dismissal was subsequently confirmed on appeal. The landlord has now appealed to this Court, and on his behalf it has been contended that the suits fall within the description given in Section 7 Sub-section IV Clause (c) of the Court Pees Act; in other words, that the suit is one to obtain a declaratory decree where consequential relief is prayed. From this point of view it has been argued that the Court-fee payable depends upon the value of the suit. In the present instance that value has been determined by the landlord, apparently arbitrary, at Rs. 5, and it has been argued that the fee payable is the same as is leviable upon a plaint in a suit for recovery of possession of property valued at Rs. 5. In support of this proposition reliance has been placed upon a decision of this Court in the case of Srinath Chandra Pramanik v. The Secretary of State for India in Council 5 Ind. Case 141 :11 C.L.J. 158, to which one member of this Bench was a party. As the question raised is one of great importance and as the tenant defendant has not entered appearance, we have heard the learned Government pleader as amicus Curix. He has contended that the suit is essentially one for a declaratory decree, and that although the plaintiff asks for amendment of the record-of-rights, that prayer is superfluous, inasmuch as under Section 107 Sub-section (2) of the Bengal Tenancy Act, it is the duty of the Revenue Officer to make a note in the record of the decision of all disputes under Section 105. In answer to this contention it has been pointed out by the learned Vakil for the appellant that very slight circumstances have been sometimes regarded as sufficient to convert a suit for a declaratory decree with one for a declaratory decree with consequential relief. We have been reminded of the familiar illustration that even a prayer for confirmation of possession has been treated as a prayer for consequential relief, and reference has, in this connection, been made to the cases of Dinabundhoo Chowdhry v. Rajmohini Chowdhurani 8 B.L.R. App. 32, and Bohuroonissa Bibee v. Kureemoonissa Khatoon 19 W.R. 18. This class of cases, however, is obviously distinguishable. The plaintiff who asks for declaration of title because his possession has been disturbed or whose title has been questioned, is obliged to ask for confirmation of possession inasmuch as cloud has been thrown upon his title. But in the case before us, the prayer for consequential relief is, by reason of the provision of Section 107, Sub-section (2), of the Bengal Tenancy Act, entirely superfluous. The learned Vakil for the appellant has indeed suggested that it is open to a plaintiff to add a superfluous prayer for consequential relief merely to gain an advantage, inasmuch as he can thereby in some cases reduce the amount of Court-fee which would otherwise be payable. It is doubtful whether in view of the provisions of Section 17 of the Court Fees Act, it is really open to the plaintiff to adopt such a device successfully. But, it is clear, in view of the provisions of Section 42 of the Specific Relief Act, that a plaintiff would not be competent to take any unfair advantage, because if the plaintiff is really able to seek further relief than a mere declaration of title, his suit for a mere declaration would not be entertained. The question, therefore, in every such case would be whether the plaintiff can ask only for a declaratory decree, or whether it is competent to him to seek a further relief than a mere declaration of his title. If it is open to him to adopt the latter alternative, under Section 42 of the Specific Relief Act, it is obligatory upon him to do so. We are, therefore, unable to hold that there is any real apprehension of possible evasion of the law in the way suggested by the learned Vakil for the appellant.
2. The sole question, therefore, is whether a, suit under Section 106 of the Bengal Tenancy Act is a suit for a declaratory decree. In our opinion, there is no room for controversy as to the true nature of such a suit, though a contrary view was apparently taken in the case of Srinath Chandra v. Secretary of State 5 Ind. Case 141 : 11 C.L.J. 158. But it must be observed that in that case the matter was decided ex parte and the arguments which might be urged in support of the contrary view, we now adopt, were not placed before the Court. We may add that it is fairly clear from a significant circumstance that suits under Section 106 of the Bengal Tenancy Act were never intended by the Legislature to be valued for purposes of either payment of Court-fees or determination of jurisdiction of the Court. Section 8 of the Suits Valuation Act shows that in the case of suit of certain descriptions which would comprehend a suit under Section 106 of the Bengal Tenancy Act, the value of the suit for purposes of jurisdiction would be identical with the value of the suit as determinable for computation of the Court-fees. The result would be that if it was intended that a suit under Section 106 should be arbitrarily valued by the plaintiff, a question of considerable difficulty might arise as to the form of the appeal. For instance, if the plaintiff valued the suit at more than Rs. 5,000, an appeal in ordinary course ought to lie to this Court. Section 109 A of the Bengal Tenancy Act, however, provides for a first appeal to the Special Judge, and a second appeal to this Court in all cases under Section 106 A. It is further clear that if the view now urged by the appellant were adopted, considerable hardship might result in many instances. In fact in every case in which the value of the suit exceeded Rs. 130, the amount of fee payable ad valorem would exceed the fee leviable on a plaint in a suit for declaratory decree. This would be an obvious hardship to a litigant under Section 106, who cannot obtain any decree for recovery of possession under that section ; in fact the plaintiff in a suit under Section 106 does not gain any advantage except an amendment of the entries in the record in so far as such entries have been prejudicial to his interest. We must hold, therefore, that a suit under Section 103 is a suit for a declaratory decree and the fee payable is Rs. 10 in all cases.
3. The result is that the view taken by the learned Judge must be upheld; but as the point is of some novelty and the appellant has expressed his willingness to carry out the order of this Court, the order of dismissal will be discharged, and the case will be remitted to the Court of first instance in order that the plaintiff may have an opportunity to pay the proper Court-fee upon the plaint.
4. If he pays the Court-fee within a time to be fixed by the Court, the suit will be tried on the merits; otherwise it will be dismissed. There will be no order for costs in this Court.