Decided on October 24,1952

K. Gopalu Mudali Appellant
A. Venkatesu Mudali And Ors. Respondents


Mack, J. - (1.) A simple point of court -fee is raised in this civil revision petition. The petitioner is the plaintiff who sued the two defendants for arrears of rent amounting to Rs. 126 -0 -3 and recovery of possession of the land on the basis of the relationship of landlord and tenant valuing the suit for purposes of court -fee under Section 7, Clause XI (cc), Court -fees Act. The District Munsif upheld the objection taken by the Court -fee examiner that ad valorem court -fee should be paid under Section 7, Clause (v) (d), Court -fees Act.
(2.) COURT -fee had to be determined in the first instance on the plaint averments. According to the plaint the original owner of the land was defendant 1 who executed an usufructuary mortgage on it in favour of the plaintiff. A year later the plaintiff leased it back to defendant 1 for one year. The plaint alleged that defendant 1 continued therefore in possession as a tenant holding over, and further more that defendant 2 had purchased the land from defendant 1 subject to the usufructuary mortgage. These averments, reasonably and liberally construed simply mean that defendant 1 had conveyed his rights in the land which were only that of a tenant holding over to defendant 2. This appears to be a fair reading of the plaint which in the circumstances would not justify an inference that the plaintiff was seeking to recover possession from a trespasser who was putting up an adverse title. Even enhanced court -fee can be paid on a plaint originally filed on the footing of landlord and tenant if one of the defendants puts up a defence of adverse title and challenges the plaintiff's position as landlord. In such a case the plaintiff can amend his plaint and pay the necessary additional court -fee under Clause 7(v)(d), Court -fees Act for recovery of possession. Even according to the written statements filed, there is nothing to indicate that either defendant 1 or defendant 2 in any way challenged the position of the plaintiff as the usufructuary mortgagee entitled to possession. Defendant 2 in his written statement pleaded that he purchased the land by a registered sale deed from defendant 1 who undertook to discharge the mortgage in question. He at the same time pleaded that defendant 1 had not put him into possession at all. There is a curious allegation in para. 10 of the written statement to the effect that the suit was brought by the plaintiff against defendant 2 maliciously at the instigation of and in collusion with defendant 1. One of the decisions relied by the Court -fee examiner is - -'Hiralal Banerjee v. : AIR1926Cal504 (A) by Chakravarthi J. where the plaintiff asked for a declaration of title and also for relief against one of the defendants en the footing that he was a trespasser. It was held that the suit did not come within the scope of Section 7(1), Court -fees Act. In the present case defendant 2 was certainly not impleaded as a trespasser but more in the capacity of a subtenant from the original tenant who was holding over. There is some support for this view in - - 'Shanmuga Nadar v. Kandasami Nadar', : AIR 1937 Mad 91 (B). Mr. Narasimharaju for the Government Pleader has referred me to - -'Balasidhantam v. Perumal Chetti',, AIR 1931 Mad 654 (C), which lays down that the question of title cannot be gone into in a suit for rent brought under Section 7(xi)(cc), Court -fees Act. As I read the plaint I find that no question of title is raised. If it arises at the trial it will not be gone into by the trial Court. This petition is allowed and the lower Court order set aside without any order as to costs.;

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