A suit for recovery of immovable property from a tenant holding over after the determination of the tenancy must be valued as a suit between landlord and tenant under Section 7(xiii) of the West Bengal Court Fees Act, 1970.

Sinha, A. C. J.

The only question which arises for consideration in this appeal is as to whether this Court has pecuniary jurisdiction to entertain the suit?

2. The plaintiff-respondent in Paragraph 11 valued the suit in the following terms :-

"The market value of the suit premises exceeds Rs. 10,00,000/-, since in this suit the plaintiff is claiming possession of the suit premises from a trespasser, who has no right whatsoever to be in occupation and/or enjoyment of the suit premises, the plaintiff has valued this suit at the value of the said property being in excess of Rs. 10,00,000/-. In the premises this Hon'ble Court has and the City Civil Court at Calcutta has not the jurisdiction to receive, try and determine this suit."

The prayers made by the plaintiff in the suit-are -

"(a) Decree for khas possession and vacant possession of the suit premises, being the flat on the 8th floor of 3A, Shakespeare Sarani, Calcutta particulars whereof are contained in the Schedule ‘B' hereto;

(b) Decree for mesne profits @ Rs. 5,000/- per diem from 1st Match, 1995 till vacant possession of the suit premises has been made over to the plaintiff."

3. Admittedly, the rent fixed for the tenament was Rs. 5,000/- per month. The terms and conditions of the tenancy had been fixed in terms of an indenture of lease dated 10th December, 1973. The suit has been filed, inter alia, on the ground that the period of tenancy has expired.

4. The learned trial Judge upon -referring the decisions in (1) Govinda Kumar Sur & Ors. V. Mohini Mohan Sell & Ors. reported in AIR 1930 Cal 42; (2) Govinda Ram Agarwalla v. Dulu Pada Dutt & Anr. reported in 32 CWN 1113; (3) Brigadier K.K. Verma & Anr. v. Union of India & Anr. reported in AIR 1954 Bombay 358 and (4) Smt. Shanti Devi v. Amal Kumar Banerjee reported in AIR 1981 SC 1550, held that valuation of the suit. Under Section 7 Paragraph (v)(2) of the West Bengal Court fees Act, 1970 as has been done in the instani case is permissible.

5. The learned Counsel appearing on behalf of the appellant, inter alia, submitted that keeping in view the fact that the lease expired on 1st March, 1995 and suit having been filed on 6th April, 1995, the valuation of the suit would be Rs. 2,35,000/- i.e. Rs. 60,000/- for recovery of possession (being 12 month's tent) and Rs. 1,85,000/- towards claim of the mesne profit. A suit, according to the learned Counsel, cannot be valued on the basis of the claim for post mesne profit.

6. On the other hand, the submission of the plaintiff-respondent is that upon expiry of the period of lease by efflux of time the appellant has become a trespasser. Reliance in this connection has been placed on Smt. Shanti Devi v. Amal Kumar Banerjee reported in AIR 1981 SC 1550, wherein it has been held :-

"Undoubtedly, Section III (a) of the Transfer of Property Act, which deals with determination of a lease by efflux of time, has to be read with Section 116 of the Act. But, in the present case, there is no allegation by the defendant that he was a tenant holding over within the meaning of Section 116 of the Act. Now, in order that a lease should be deemed to have been continued in favour of the defendant it was necessary to show that he remained in possession of the premises demised after the determination of the lease granted to him and the plaintiff had expressly or by necessary implication assented to his continued possession. There being no such plea of holding over, the matter falls to be governed by Section 111(a) of the Transfer of Property Act. If the period of lease had expired on January 10, 1970, the relationship of Landlord and Tenant ceased and the defendant became a trespasser."

7. Reliance in this connection has also been placed on (5) R.V. Bhupal Prasad v. State of A.P. & Ors. reported in 1995(5) SCC 698, and (6) Krishna Kishore Firm v. The Govt. of A. P. & Ors. reported in AIR 1990 SC 2292.

8. It has been stated that the suit has been valued on the basis of the market value of the property unde