1. The substantial question in controversy in this Rule is, whether the suit instituted by the opposite party falls within the scope of Clause XI Sub-clause (e) of Section 7 of the Court Fees Act, 1870, as held by the Subordinate Judge, or within Sub-clause (e) of Clause IV of Section 7, as suggested by the Counsel for the plaintiff in this Court, or within Clause V of Section 7 as contended by the petitioner.
2. On the 14th September 1911, the plaintiff commenced this suit in the Court of the Subordinate Judge and prayed for possession of a mine, for mesne profits till possession was delivered to her, and for damages, costs, and interest. Her case is that she is the representative of a person to whom a grant was made by the mother of the first defendant on the 15th July 1900 for a term of 24 years. The grantee transferred his interest to the husband of the plaintiff on the 25th March 1902. On the 12th April 1911, the first defendant gave a letter of authority to the other defendants, and it is alleged that on the 15th May 1911, he entered into an agreement with the persons, whom he has authorised to enter upon the land, to grant them a lease. The plaintiff has not been able to obtain possession of the property claimed by her, and her suit is, in substance, one for recovery of possession It has been argued on her behalf that the suit is of the description contemplated by Sub-clause (e) of Clause XI of Section 7 of the Court Fees Act, which is in these terms: 'In a suit to recover the occupancy of land from which a tenant has been illegally ejected by the landlord, the amount of fee payable is according to the amount of the rent of the immoveable property to which the suit refers payable for the year next before the date of presenting the plaint.' The petitioner contends that the suit does not fall within this class, and relies upon the decisions in Furzand Ali v Mohanth Lal Puri 32 C. 268 and Palaniappa Chettiar v. Sithravelu Servai 31 M. 14 : 3 M.L.T. 8 : 17 M.L.J. 478. In these cases, it was held that a suit of the present description does not fall within Clause XI(e) of Section 7, inasmuch as the suit is one, not merely between the tenant and the landlord, but also between tenant and other persons who claim to have acquired an interest from the landlord. The Subordinate Judge has expressed the opinion that these cases are not applicable, but he has not assigned any reason in support of his view. In our opinion, the case before us is not distinguishable from those mentioned, and, consequently, must be deemed outside the scope of Clause XI(e) of Section 7 of the Court Fees Act. We may further observe that it is at least doubtful whether Section 7, Clause XI(e), was ever intended to apply to a case of this description. The clause does not describe the suit as one for recovery of possession by a tenant who has been dispossessed by his landlord, the suit mentioned is one for recovery of occupancy of land from which the tenant has been illegally ejected by the landlord, that is, ejected nominally in conformity with, but really in contravention of, the provisions of the rent law for ejectment of tenants by landlords. When, we look to the Sub-clauses which precede and follow Sub-clause (e), it becomes fairly obvious that the Legislature had most probably in view suits of the description mentioned in Section 23 Clause (6) of Act X of 1859: and it is worthy of note that Section 139 of the Chota Nagpur Tenancy Act of 1908 also refers to suits of the same class. These suits are triable exclusively by Revenue Courts. The view taken by the Subordinate Judge is, therefore, clearly untenable.
3. In so far as the contention of the Counsel for the plaintiff is concerned, we are clearly of opinion that the suit is not of the description mentioned in Sub-clause (e), Clause IV of Section 7 of the Court Fees Act. That clause refers to a suit for 'a right to some benefit (not herein otherwise provided for) to arise out of land.' It has been argued that, inasmuch as the plaintiff seeks to recover possession of a mine, the suit may be treated as one for enforcement of a right to some benefit to arise out of land. But this meaning cannot, by any stretch of language, be attributed to the clause in question, which, obviously applies to suits for the enforcement of a right of easement. In our opinion, the suit as framed is plainly a suit for possession of land within the meaning of Section 7 of Clause V of the Court Fees Act and must, consequently, be valued according to the value of the subject-matter. There is thus really no room for controversy that the decision of the Subordinate Judge is erroneous.
4. But it has been argued on behalf of the plaintiff that the Rule should be discharged, first, because the decision of the Subordinate Judge is final under Section 12 of the Court Fees Act, and secondly, because if the order is not final, this Court has no jurisdiction to interfere with it in the exercise of its revisional jurisdiction. In so far as the first ground is concerned, it is clear that Section 12 has no application to this case. It has been repeatedly ruled that Section 12 has no application where the question for decision is as to the class under which a suit falls and not merely of valuation in that class. It is sufficient to refer in support of this view to the decisions of this Court in the cases of Ajoodhya v. Gunga 6 C. 249 : 6 C.L.R. 567 : In re Omrao Mirza v. Mary Jones 12 C.L.R. 148 : Upadhya v. Persidh 23 C. 723 : Peari Shah v. Surja Mal Marwari 16 Ind. Cas. 575 : 16 C.L.J. 371 and Studd v. Mati Mahto 28 C. 334. Section 12 therefore is no bar to the exercise of the jurisdiction of this Court. In so far as the second ground is concerned, it has been contended that, even if the decision of the Subordinate Judge is erroneous, that is no reason why this Court should interfere. It has been conceded, however, that the Court has previously interfered with erroneous decisions of Subordinate Courts in this class of cases Vithal Krishna v. Bal Krishna 10 B. 610 : Srinath v. Secretary of State 5 Ind. Cas. 141 : 11 C.L.J. 158 : Krishna Das v. Hari Charan 10 Ind. Cas. 865 : 14 C.L.J. 47 : 15 C.W.N. 823 : Ramrup Das v. Sujaram 7 Ind. Cas. 92 : 14 C.W.N. 932 : 12 C.L.J. 212. But it is needless to examine the scope of our revisional jurisdiction or discuss the effect of the decisions mentioned at the Bar Amir Hassan v. Sheo Baksh 11 C. 6 : 11 I.A. 237 : Kristamma v. Chapa 17 M. 410 : Bhagwan Ramanui Das v. Khetter Moni Dassi 1 C.W.N. 617 : Mathura Nath v. Umesh Chandra 1 C.W.N. 626 : Raghu Nath v. Chatraput 1 C.W.N. 633 because, even if it be conceded that this Court cannot interfere in the exercise of its revisional jurisdiction, it is plainly competent to us to revise the proceedings of the Court below under Section 15 of the Charter Act. We are of opinion that this is eminently a case where we should so interfere. We cannot accept as reasonable the suggestion of the plaintiff that the question may be considered by this Court at a later stage of the proceedings. It is obviously desirable, in the interest of both parties, that the question should be settled at the earliest possible stage of the suit. An application has been made for the issue of an injunction upon the defendants, and the plaint discloses that an application may also be made for the appointment of a Receiver. Any order made upon those applications would be appealable, and the question would at once arise as to the forum of appeal. The same question is also bound to arise when the final decree is made by the Subordinate Judge. It is clearly undesirable that the parties should be left in a state of uncertainty with regard to so vital a point in connection with the proceedings.
5. The result is that the Rule is made absolute and the order of the Court below discharged. The plaintiff will be called upon to value the suit in accordance with Clause V, Section 7 of the Court Fees Act, and to pay Court-fees accordingly. The petitioners are entitled to the costs of this Rule. We assess the hearing fee at three gold mohurs.