Judgment

GROVER, J.:- This is an appeal by special leave from a judgment of the Bombay High Court (Nagpur Bench). The appellants had filed a suit for claiming proprietary rights in a property which was known as "Navegaon tank" and which consisted of several khasras with a total acreage of 3104 odd. These villages were Malguzari villages. By virtue of the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 the malguzars of this tank were deprived of their rights and the Government took over possession. The compensation was paid by the Government after holding enquiry provided by the Act. The appellants, however, claimed a declaration that they still continued to be owners as before and wanted a permanent injunction restraining the Government from interfering with their rights. Alternatively it was prayed that if the Government was found to be in possession then a decree for possession be granted in their favour.

2. The Court-fee which was paid by the appellants was calculated on the following basis. It was alleged that compensation of Rs. 1126/- only had been paid to the proprietors and therefore the tank had to be valued on the basis of that figure for the purpose of Court fee and jurisdiction. In addition owing to the injunction claimed an additional Court fee of Rs. 50/- was paid. On behalf of the State an objection was raised in the trial Court that the value of the tank would not be less than Rs. 10,00,000/- and Court fee on that amount should have been paid. The trial Court came to the conclusion that the suit was for possession of land and on the evidence which was produced it was held that the value of the land was Rs. 25,00,000. The appellants were directed to pay Court fee on that amount and make appropriate amendments in the plaint.

3. The appellants approached the High Court on the revisional side and challenged the decision of the trial Court on the question of Court fee. The High Court referred of Section 6 (i) (v) of the Bombay Court-fees Act, 1959, which was in force at the material time. This provision may be reproduced:-

"In suits for the possession of land, houses and gardens according to the value of the subject matter and such value shall be deemed to be, where the subject matter is a house or garden according to the market value of the house or garden and where the subject matter is land".

(a)........................

(b)....................

(c).....................

According to the High Court the Court fee was payable according to the value of the subject matter of the suit. So far as the houses and gardens were concerned it was the market value on which the Court fee had to be paid. As regards the lands sub-Clauses (a), (b) and (c) contained a qualification with regard to those lands which were liable to pay land revenue to the State. Since tank was land covered under water it had to be valued as on the date of the suit without taking into consideration the improvements which might have been made. The value was of the subject matter and it would be that value which would be relevant for the purpose of Court fee and jurisdiction . The matter was remanded to the trial Court for further enquiry in the matter.

4. It appears that according to the view of the High Court the Court-fee is payable under S. 6 (I) (v) even with regard to land on its value which according to the counsel for the State would be the market value. In our judgment Section 6 (i) (v) does not admit of any such method of calculating the Court fee where the subject matter is land. There is no doubt that where the subject matter is a house or a garden, in a suit for possession the Court fee has to be paid according to the market value of the house or garden but where the subject matter is land the Court fee has to be calculated according to what has been provided in the sub-clauses (a), (b) and (c) with regard to different categories of land. It may be that in Clause (v) the land which has not b