In a suit for recovery of immovable property from the heirs of a deceased statutory tenant, the court fee payable is under Section 7 (xi) (cc) and not Section 7 (v) (e) of the Court Fees Act, 1870.

( 1 ) THIS judgment would dispose of Civil Revision Nos. 798/78, 558/78 and 219/79 as common question of law is involved in them.

( 2 ). This matter was admitted to a Division Bench by one of us (Sachar J) because there was a conflict of view between two learned Single Judges of this Court as to whether Section 7 (v) of the Court Fees Act, 1870 or Section 7 (xi) (cc) of the said Act applies in a suit filed by owner of the house for possession of the premises on the ground that the tenant whose tenancy had been terminated during his life time had died and the premises are now in occupation of his heirs.

( 3 ). The respondent No. 1 has filed a suit claiming that the premises were in the tenancy of one Ram Sunder Bhatia whose tanancy was terminated by notice dated 6th January, 1958. It was further averred that after the termination of tenancy, the said Bhatia continued as a statutory tenant. He is stated to have died on 18th February, 1970. Defendants No. 1 to 9, who are heirs of Bhatia, should have handed over possession of the premises to the plaintiff but they have not done so and are continuing in illegal and unlawful possession of the suit premises. Hence suit for possession. The suit was valued for purposes of court fee at Rs. 5,000, on the value of the tenancy.

( 4 ). The defendants controverted the allegations and maintainel that the tenancy was not in the name of Shri Ram Sunder Bhatia but in the nams of the Joint Hindu family. The allegation that they were in illegal and unlawful possession is also denied. In fact, they claimed to be the tenants. We are not concerned with the merits of the case because the suit is still pending. A preliminary objection was taken that the suit was not properly valued for the purpose of court fee and jurisdiction. The defendants maintained that the suit should have been valued under Section 7 (v) (e) of the Act as in a suit for possession of a house the court fee should have been paid according to the value of the subject matter which according to the defendants would be the market value of the house. This contention is supported by a decision of Avadh Behari J. in the case of Delhi State Cooperative Bank v. Eric etc. , 1975 Rajdhani Law Reporter 124 (1) following Gauri Shanker v. Shakuntla Devi, (AIR 1968 Pandh 302x2 ). The plaintiff s case on the other hand was that the suit was to be valued under Section 7 (xi) (cc) of the Act which provides that in a suit between landlord and tenant for recovery of immovable property from a tenant including a tenant holding over after the determination of a tenancy, according to the amount of rent of an immovable property to which the suit refers, payable for the year next before the date of presenting the plaint. This view finds support from a decision of Dalip K. Kapur J. in the case reported as Chuni Lal v. Sukh Devi etc. , (1978 Rajdhani Law Reporter 58) (3 ). The trial court following Chuni Lal s case has overruled the defendants objection, who have come up in revision to this court.

( 5 ). We may note that in the lower court the plaintiff had really not strictly invoked section 7 (xi) (cc) as had valued for court fee at R. S. 5000 being the market value of tenancy premises while under section 7 (xi) (cc) of the Act the value should have been the annual rent payable i. e. 80 x 12 = Rs. 960 ). But as the defendants maintained that the :ourt fee should be paid on the market value of the house, the conflict between the decisions in Cooperative Bank and Chuni Lal s cases had to be resolved and that is why the matter had to be heard by a Division Bench.

( 6 ). Mr. Sabharwal, learned counsel for the defendants petitioners contends that the court fee payable undersection 7 (xi) (cc) only covers a case where the suit is for recovery of an immovable property from a tenant including a tenant holding over after the determination of the tenancy. The argument is that admittedly the heirs of the deceased tenant like the present defendants are