In a suit for specific performance with or without possession, court fee shall be payable as in the case of a contract of sale, computed on the amount of the consideration.

CHANDRASEKHARA SASTRY, J.

( 1 ) O. S. 120 of 1959 on the file of the District Munsifs Court, Peddapuram, was a suit filed for specific performance of an agreement to sell the plaint schedule lands, alleged to have been executed by the first defendant in favour of the plaintiff. In the plaint it was alleged that the second defendant was a tenant under the first defendant cultivating the lands. The agreement of sale on which the plaintiff relied is dated 25/02/1959. It was further alleged in the plaint that the first defendant in order to defeat the claim of the plaintiff, colluded with the second defendant, who is her mothers sisters son, and brought into existence an agreement to sell the suit lands to the second defendant. It is on these allegations the suit was filed for specific performance of an agreement to sell dated 25-2-1959. The relief asked for was also for possession of the suit lands not only against the first defendant but also against the second defendant.

( 2 ) THE first defendant pleaded that the suit was not properly valued and the court fee was not properly paid. It was urged by the first defendant that though court fee was paid for specific performance of the agreement on the consideration for which the sale was to be effected, still since possession was asked for against the second defendant also who is in actual physical possession of the land the plaintiff has further to value the suit as one for possession also and pay court fee thereon.

( 3 ) THIS objection was upheld by the trial Court. It found that if the suit is valued as contended for by the defendant, it would be beyond the pecuniary jurisdiction of the Munsifs Court. Therefore the trial Court ordered that the plaint for be returned to the plaintiff for presentation to proper Court.

( 4 ) THE plaintiff appealed to the Subordinate Judges Court, Kakinada. The learned Subordinate Judge held that though possession was claimed even as against the second defendant, the suit was essentially one for specific performance of an agreement to sell and that under Section 39 of the Andhra. Court Fees and Suits Valuation Act, 1956 the suit was properly valued and proper court fee paid on the amount of consideration is adequate.

( 5 ) SECTION 39 prescribes that in a suit for specific performance with or without possession, tee shall be payable as in the case of a con-tract of sale, computed on the amount of the consideration. In that view, the lower Court set aside the order of the trial Court returning the plaint and directed the District Munsifs Court, Peddapuram, to lake it on its file and proceed with the trial of the suit. Hence this Civil Revision Petition is filed by the first defendant on whose behalf the learned counsel urged the same point as in the trial Court.

( 6 ) MR. Veerabhadrayya, the learned counsel for the petitioner has argued that the suit is not one for specific performance as against the second defendant. He was not a party at all to the agreement to sell. The second defendant was not bound to deliver possession of the property to the plaintiff under any agreement entered into between himself and the plaintiff. It is further pointed out that there was an allegation in the plaint that the second defendant was a tenant cultivating the lands under the first defendant. Hence the suit could not be referred to as one for specific performance, against the second defendant, but was really one for possession and the relief for possession, according to the learned counsel, has to be valued separately and court fee has to be paid thereon. If so, the District Munsifs Court would not have jurisdiction to try the suit. In support of this argument, reliance is placed upon the decision of the Full Bench of the Madras High Court in Suryanarayanacharyulu v. Narasimhaswamy, AIR 1939 Mad 360 (FB ). But the facts of that case are entirely different. The learned Judges pointed out that the suit in that case was really not one for specific performance, but was a

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