1. The facts relating to the suit in the appeal wherein this question of court-fees has arisen have been set out in full in the reference made by the Registrar under Section 5, Court-fees Act. For the purpose of the present reference it will be enough to state that the plaintiff instituted a suit against three persons of whom defendants 1 and 2 were alleged to be the persons in possession and defendant 3 was the admitted landlord. The plaintiff asked for declaration of title and recovery of possession on the allegation that he had got settlement from defendant 3 but that subsequently defendants 1 and 2 dispossessed him at the instigation of the said defendant. The title that he set up was the jote right to-the land in suit. The decree that was-passed by the trial Court was as against, defendants 2 and 3. That Court dismissed the suit as against defendant 1 holding that by reason of the death of that defendant the suit had abated in so far as it was against him. The decree was. in these words:
Plaintiff's jote right to the lands mentioned' in the schedule to the plaint is hereby declared-and he do get khas possession thereof.
2. From this decree defendant 3 preferred an appeal but the appeal was dismissed and the decree of the trial Court was affirmed. The said defendant has then preferred this second appeal. The suit was valued in the trial Court at Rs. 800 said to be the market value of the property and was instituted on a court-fee of Rs. 90. Defendant 3 preferred his appeal to the lower appellate Court from the decree of the trial Court valuing the appeal at Rs. 800, that is to say, the market value of the property and on a court-fee of Rs. 90. In this Court however he has preferred the appeal on a court-fee of Rs. 20. The question that arises upon this reference is whether this court-fee is sufficient.
3. The learned advocate who has appeared on behalf of the appellant before me has stated that the decree, such as it is does not really affect his client, but his client has been obliged to prefer this appeal by reason of the fact that there was an order for costs against him. His case is that, inasmuch as an appeal from an order for costs only would not be competent, he is obliged to ask for some other relief, and that it would be enough for him to have a declaration to the effect-that the plaintiff's title is not proved, that is to say, that his jote right to the land has not been established. He says that he is not concerned at all with the question of possession because of two reasons: Firstly for the reason that defendant 3 is not entitled to possession inasmuch as possession would be with the other defendants, defendant 3 being only a landlord; and secondly, for the reason that the suit; as against defendant 1, having been dismissed the plaintiff cannot very well-get possession even as against defendant 2. In support of this last mentioned contention he has relied upon the decision of this Court in the case of Arunadoya Chakravarty v. Mahammad Ali : AIR1928Cal138 .
4. The learned advocate relies in the first place upon Article 5, Schedule II, Court fees Act and next upon Section 7, para. (11) Clause (cc) of that Act and says that the suit should be treated as being governed by one or other of the aforesaid provisions. He contends further that in any case he is entitled 'to prefer the appeal on the footing that ho is seeking for a declaration only, namely a declaration to the effect that the plaintiff's title has not been established. It will be necessary therefore to consider these three matters one after the other.
5. As regards Article 5, Schedule 11, Court-fees Act, that article runs in these words: 'Plaint or memorandum of appeal in a suit to establish or disprove a right of occupancy.' The application of this article depends upon the character of the suit and not upon the scope of the appeal. Now the suit, such as it was, was not merely a suit to establish a right of occupancy but also a suit for recovery of possession. The article, it will be seen, says nothing of recovery of possession and in the terms it cannot apply to the present suit.
6. As regards Section 7, para (11), Clause (cc) that clause runs in these words:
In the following suits between landlord and tenant, for the recovery of immovable property from a tenant including a tenant holding over after the determination of a tenancy.
7. The suit that was instituted was not a suit which could at all come within the words which I have quoted. The subject matter in dispute in the appeal which has to be determined for the purpose of court-fees under Schedule 1, Article 1, cannot on any conceivable view be brought Under this clause. It has never been the case of the defendant that the plaintiff was tenant of his. Furthermore the suit was not one for recovery of immovable property from a tenant but rather by one who alleged that he was a tenant and from certain persons who were alleged to be trespassers and who were instigated by the landlord. This clause therefore does not apply to the present case.
8. The only other matter for consideration is as to whether the plaintiff can proceed with the appeal on a court-fee of Rs. 23, on the footing that he is asking only for a declaration and that he is not concerned with the question of recovery of possession. It is true that according to certain decisions of this Court amongst which may be referred the case of Arunadoya Chakravarti v. Mohammad Ali : AIR1928Cal138 upon which reliance has been placed on behalf of the appellant a decree cannot properly be passed as against some only out of a body of joint trespassers. That however is an entirely different matter, because what we have got to see is not whether the decree could or should have been passed as against defendants 2 and 3 but whether such a decree has been passed. Prom the words of the decree quoted above it will be clear that whether it was right or not a decree declaring the plaintiff's title, and awarding him khas possession has actually been passed in the present suit as against defendants 2 and 3. Defendant 3 cannot be permitted to remove the foundation of the decree for possession that the plaintiff has obtained under the decree by having a declaration to the effect that the plaintiff has no title. This, in my opinion, is clearly a case in which the appeal, if entertainable must be regarded as one affecting the entire decree that the plaintiff has obtained. The case is a fit one for the application of the principle under which a party cannot be allowed to have a declaration when he can and ought to ask for consequential relief. On the footing therefore of the appeal purporting to ask for a declaration and not being concerned at all with the question of possession the appeal will not be entertainable. In my opinion therefore whatever may be the object with which the appeal has been filed it is governed by Schedule 1. Article 1 read with Section 7, para (5) and if it is to be entertained at all it can be entertained only if it is presented on a court-fee on which the appellant himself presented his appeal in the lower appellate Court, namely a court-fen of Rs. 90.
9. The appellant will have two weeks' time to put in the balance of court-fee, namely, court-fees to the value of Rs. 70.