In an appeal challenging the denial of occupancy rights in land, ad valorem court fees are payable on the value of the interest claimed by the appellant.

Reuben, J.

1. This is a reference under Sec. 5, Court-fees Act.

2. One Ramyad Gosain, proprietor of three annas and odd share in touzi No. 1484, mortgaged this share usufructuarily in the year 1911 to defendants 1 and 2 to secure a loan of Rs. 1,600. 12 bighas of land which forms the subject-matter of the present appeal was included in the hypothecated property as bakasht land. The present suit has been brought by the plaintiffs as successors-in-interest of Ramyad Gosain to redeem the mortgage. They also seek khas possession of these 12 bighas as against defendants 3 and 4 alleging that these defendants are the benamidar for defendants 1 and 2. The plaintiffs have succeeded as regards the prayer for redemption in both the Courts below and this portion of the decree is not challenged. The present appeal is by defendants 3 and 4, who claim occupancy rights in the 12 bighas, which they claim to have been settled with them by Ramyad Gosain in 1919 with the consent of the mortgagees. This defence was accepted by the Munsiff, bus, in appeal by the plaintiff, the lower appellate Court has held that there was no such settlement and has granted the plaintiff the relief prayed for. Hence, the present appeal.

3. The suit was valued in the Court of first instance at Rs. 1,600 under Clause (ix) of Section 7, Court-fees Act. The same value was placed by the plaintiff on his appeal in the District Court. On an objection by the Stamp reporter that the relief as regards the 12 bighas is not covered by Clause (ix) of Section 7, the District Judge accepted the valuation but on a different basis, namely Rs. 683-7-3 on account of a set-off claimed by the plaintiffs and refused by the Munsiff and the balance of Rs. 916-8-9 as the value of the 12 bighas of land. Regarding this latter sum, the District Judge remarked :

"This may be taken as adequate, in view of the fact that defendants 3 and 4 have, according to the judgment of the lower Court, to pay rental of Rs. 36 to the plaintiff."

The appellants, to this Court have valued their appeal at Rs. 1,147-8-7 consisting of Rs. 916 and odd as the value of the land and Rs. 230 and odd on account of excess coat etc. assessed against them..

4 This reference has been made to me for a decision on two points : firstly, as to whether Clause (ix) of Section 7 has any application and, secondly, if ad valorem court fee is payable, how it is to be assessed.

5. Really, there is no distinction between the two points. Clause (ix) of Section 7 is not a charging section. It merely prescribes the manner in which the valuation is to be computed in certain cases in which an ad valorem court-fee is pay. able. The charging section in the case of appeals in the High Court against judgments of Subordinate Courts is Sec. 4, which provides that no document of any of the kinds specified in the first or second schedule to the Act as chargeable with fees, shall be filed or received in a High Court in the exercise of its jurisdiction as regards appeals from the Courts subject to its superintendence unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document. We have, therefore, to see whether there is any provision in the schedules which applies to the appeal. In the present case, there is no specific article that applies and we-have to fall back on the residuary provision, Article 1 of Schedule I, under which an ad valorem-court-fee is chargeable on "the amount or value-of the subject-matter in dispute". The test is what is the subject matter in dispute and what is its amount or value ?

6. The question of the applicability of Clause (ix) of Section 7 has been referred to me on account of my decisions on references under Sec. 5, Court-fees Act made in Second Appeal Nos. 1500 of 1949 and 704 of 1949, in both of which I held that the value should be computed as provided in Clause (ix). Those appeals arose out of suits for