Niamat Uilah, President.
1. This appeal arises out of a suit brought by the respondent for ejectment of the defendant-apple from a tenancy holding The deft, contested the pltf's. right to eject & claimed compensation for improvement in the event of a decree for ejectment being passed. The Revenue Officer, Anantnag, in whose Ct. the suit had been instituted, passed a decree for ejectment subject to the pltf paying Rs. 903-14-0 as compensation for improvement. The defo. appealed to the Ct. of the Addl. Collector, Kashmir reiterating his defence that the pltf. was not entitled to eject the deft & claiming compensation for improvements to the extent, of Rs. 3000.
2. The Collector was of opinion that the deft. was liable to pay ad valorem court-fee on the difference batween Rs. 903-14.0 awarded as compensation by the trial Ct. & the sum of Rs. 3000 claimed by him on appeal. Time was given to the deft. to make good the deficiency in the e. f. On failure by the deft. to pay the requisite c. f. the appeal was dismissed. A second appeal to the H C. was equally unsuccessful. The contention before the H. C. was that the relief of enhanced compensation claimed by the deft. being ancillary to the mam purpose of the appeal namely, contesting the pltf's right to eject, the eame c. f. was payable on appeal as bad been paid by the pltf on his plaint. Certain cases seem to have been cited in the H C. in support of this contention but the learned Judges considered that Section 82, State Tenancy Act, indicated that the claim to compensation cannot be regarded as merely ancillary in view of the law prevailing in the State. How far this view is borne out by Section 82, State Tenancy Act felied on by the learned Judges of the H C. will be adverted to later in this judgment. The Board may however, point out that the applt. was in any view of the case entitled to have his appeal heard in so far as it impugned the right of the plif. to eject as he had paid proper c. f. on the relief claimed in the appeal against the decree of the first Ct. directing ejectment.
3. In a suit for ejectment which is one 'for the possession of land', c. f. is payable on the value of the property under Section 7(v), Court-fees Act, which further provides various methods for calculating the value with reference to different kinds of property therein mentiontd Initially the pltf. is called upon to pay no more than ad valorem c. f. on the value of ihe subjter master determined according to that section. Obviously, he need not take any account of the compenat on for improvement which the deft. may claim & which the Ct. may decree as a condition precedent to the decree for ejectment taking effect. The subject matter of the suit is, therefore, only land; but the subject-matter of the appeal from a decree passed in such a suit is not always the same For instance, if the pltf. pref. rs an appeal only from that part of the decree which directs him to pay a certain amount of compensation, questioning the amount awarded, the subject matter is only the amount of money from which the pltf. seeks exemption. Similarly if the deft, appeals from such a decree not challenging the pltf'S. right to eject but claiming enhanced amount of compensation for improvement, the subject-matter of the appeal may well be said to be different from the subject-matter (sic) suit. The law applicable to matters of c. f. in appeal is to be found in Act. I, Schedule I, Court-fees Act, which provides for payment of ad valorem c. f. on the value of the subject, matter in appeal. It is true that that Article deals with plaint, written statement, pleading, set off or counter claim & also with memorandum of appeal & it was argued in certain classes of cases that the subject-matter of appeal should be taken to be the same as that of the original suit. It is, however, settled law that the subject-matter of appeal is not always identical with that of the original said. In particular cases, however, there is room for contention that regardless of the amount of money at stake the subject-matter of the appeal is the same as that of the original suit. A suit for ejectment, where the pltf. may be callel upon to pay compensation for improvements, may be considered to belong to that class of suits. Reference under Court-fees Act, Section 5, 23 Mad. 84, ig a case falling within that category. IN that case a suit for ejectment; was decreed & the deft -tenant's claim to Rs. 500 as compensation was disallowed. The deft. appealed on the ground that his claim to improvement should have been allowed. He paid the same c. f. as had been paid by the pltf. on his plaint. It has been held by a D. B. of the Madras H. C that the relief to compansation is 'merely incidental to the decree for possession.' 4, therefore, ad valorem c. f. on the value of land was sufficient & no account should be taken of the amount of compensation involved in the appeal, The judgment does not make it clear but it appears to be the case that the tenant had appealed from the whole decree including the relief of ejectment granted to the pltf. As a judicial pronouncement it is robbed of much of its value by the observation that :
''Having regard to the difficulty & inconvenience of ascertaining the fee payable in each case if a different view were adopted we think the proper answer to this reference that on appeal, even, where the only question raised is as to the value of the improvements the applt. should not be called upon to pay any fee other than that payable in a suit for possession of land.'
The latter part of this observation is obiter dictum the soundness of which may well be doubted. In a later case Pathumma Umma v. Mohtdeen, A.I. R. (16) 1998 nad 929 : (110 I C. 752), it was held there, where on appeal the pltf.'s right to eject is challenged & an enhanced amount of compensation is claimed by the deft. the claim to compensation is merely incidental to the main relief sought against the decree for ejectment & that the same c. f. was payable as in the orignal suit. Earlier decisions of the same Ct were referred to & followed. On the view of law taken by the Madras H. C. the applt.'s contention is well founded unless there is something to the contrary in Section 82, State Tenancy Act as inferred by the learned Judges of the H. C. The Board are unable to take the same view of the provisions of Section 82 as was taken by the H. C. It should be read with Section 78 of the Act. The latter runs as follows :
'78. Determination of compensation by Revenue Ct.
(1) In every suit by a tenant to contest his liability to ejectment or hy a landlord to eject a tenant or to enhance his rent, the Ct. shall direct the tenant to file a statement of his claim, if any to compensation for improvements or for disturbance & of the grounds thereof.
(2) If the Ct. decrees ejectment of the tenant or the enhancement of his rent, it shall determine the amount of compensation, if any, due to the tenant, & shall stay execution of the decree until the landlord pays into Ct. that amount less any arrears to rent or costs proved to the satisfaction of the Ct. to he due to him from the tenant.' It occurs under the heading 'Procedure in determining compensation.' Section 82 of the said Act runs as follows :
'82. (1) If from any cause the amount of compensation payable to a tenant-- under this chapter for improvement or disturbance, or, under Section 55 for the value of uncut or, ungathered crops, or the preparation of land for sowing, has not been determined before the tenant is ejected, the ejectment shall not be invalidated by reason of the omission; but the Ct. or Revenue Officer which decreed or who ordered the ejectment may, on appln. made by the tenant within one year from the date of the ejectment, correct the omission by making in favour of the tenant an order for the payment to him by the landlord of such compensation as the Ct. or officer may determine the tenant to be entitled to.
No such order shall be operative until the tenant in whose favour the order is made has paid such ad valorem c. f. as would be payable on a plaint for a claim of the amount ordered to be paid to the tenant.
2. An order made under Sub-section (1) may be executed in the same manner as a deoree for money may be executed by a Revenue Ct.'
It occurs under the heading 'Reliff in case of ejectment before determination of compensation.' It will thus be seen that Section 78 makes it incumbent on the Ct. to elicit from the deft. a statement of his claim to compensation, if he has not claimed it himself. No execution of the decree is to take place without re-payment of compensation. The Ct is further under a statutory obligation to determine the amount of compensation to which the deft. tenant may be entitled. Section 82, on the other hand, refers to cases in which from any cause the amount of compensation payable to a tenint has not been determined before the tenant is ejected. The ejectment is to stand but the Ct., which passed the decree for eject meat shall pass an order for payment by the landlord of such compensation as may be due to the tenant. The provision that the order for payment of compensation shall not be operative until the tenant pays ad valorem c. f. on the compensation awarded to him after ejectment has already taken place. The learned Judges of the H. C. have relied on the part of Section 82 in holding that the section indicates that the relief of compensation is not incidental to the relief of possession. They have not, however, considered the context in which that provision occurs. Section 82, as its language clearly provides, contemplates cases in which by inadvertance or otherwise a tenant has bean ejected & the Ct. failed to carry out the duty imposed upon it by Section 78 to determine compensation & to make it payable before actual ejeotmeat. Section 82 can have no application to a case in which the Ct. has awarded compensation under Section 18, as a condition precedent to the ejectment taking effect & the tenant appeals from the whole decree. Wholly apart from the view taken by the Madras H. C. in the cases already cited, the Board are of opinion that it is as much the duty of a Ct. of appeal as that of the Ct. of First instance to determine the amount of compensation payable to a tenant where the tenant prefers an appeal against a decree for ejectment claiming enhanced amount of compensation. The doty of the Ct. of appeal is the same as is mentioned in Section 78. If it affirms the decree of ejectment it must determine the amount of compensation for improvements. The law having made it incumbent upon the Ct. to award such compensation as the tenant may be found to be entitled to the claim to compensation must be taken to be ancillary or incidental to the main purpose of the appeal, namely, relief against decree for ejectment passed by the Ct. of First instance.
4. Counsel on either aide referred, by way of analogy, to cases relating to c. f. on appeal in preemption & redemption cases. In the view of the case the Board have taken, they do not think it necessary to discuss those cases.
5. In the result the Board are of opinion that the deft. applt. was not liable to pay more c. f. than he had paid on appeal to the Collector.
6. Learned counsel for the reep. also contended, relying on Section 12, Court-fees Act, that the deft.'s appeal to the H. C. was incompetent. It is clear to the Board that that section has no application. It relates to cases where the valuation is in dispute & not to those in which the liability to pay the c. f. on a certain relief is the principal question in-volved.
7. For these reasons the Board humbly advise His Highness to allow this appeal with costs incurred by the applt., in his appeals to the H. C. & to His Highness to reverse the decrees of the Collector & the H. C. & to remand the case to the Collector with a Erection to re-admit the appeal & to dispose it of according to law.