The appellant has the right to choose the subject matter of the appeal, and the court fee payable in an appeal is based on the subject matter of the appeal.

1. The question of court fee payable on the appeal memorandum in an unnumbered second appeal from the decree passed by the District Court in A. S. No. 452 of 1969 has come up before us on an order of reference by a Division Bench to which the question had been referred by order dated 26th September 1973. The order of reference to the Division Bench was made because the correctness of the observations of Narayana Pillai J., in the decision in Amma Brahmaniammah & Others v. Gopalan & another reported in 1973 KLT. 726 was doubted. That observation is extracted in the order of reference and runs as follows:

"But an appeal by a defendant in that suit stands on a different footing. If there is a decree against him for future mesne profits as he has to avoid that decree he has to pay court fee on the mesne profits from the date of suit up to the date of appeal."

2. The question that was considered by Narayana Pillai J., was whether in a plaintiff's appeal from the decree dismissing a suit, court fee must be paid in relation to the mesne profits that had accrued due from the date of suit up to the date of appeal. Relying on the decision of the Supreme Court in State of Maharashtra v. Mishri Lal Tarachand Lodha and others reported in AIR. 1964 SC. 457 it was held that court fee need not be paid. The observations we have extracted followed though the question of court fee payable on an appeal by a defendant did not arise for consideration before Narayana Pillai J. The decisions in Chacko Chacko v. Varghese Varghese reported in 1955 KLT. 168 and Ulahannan Kurien v. Uthuppu Varkey reported in 1955 KLT. 377 were referred to and the learned judge observed that he disagreed with the views expressed therein.

3. When a Division Bench heard the question, the attention of the Bench was drawn to another decision of this Court in Muhammed Kassiyan Kadija Ummal & another v. Nanan Sathyadasan reported in 1971 KLJ. 375 wherein Madhavan Nair J., in dealing with a different question altogether observed:

"Under S.52 of the Court Fees Act, the appellant is to pay only such court fee as is payable on a plaint for the reliefs claimed in appeal. The decree under appeal being one for recovery of landed property with mesne profits at Rs. 1000/- per annum, appellants have to pay court fee on the market value of the properly and on the mesne profit decreed." (The italic is ours).

4. Though the above observations were obiter the Division Bench felt that the question must be considered by a larger Bench and that is how the matter has come up before this Full Bench.

5. The facts of the case are these: The appellant was the 4th defendant in a suit for recovery of property with mesne profits past and future. No court fee had been paid by the plaintiff in the suit for mesne profits that had accrued up to the date of suit. There was a specific relief for mesne profits from the date of suit. The trial court decreed the suit with mesne profits at the rate of Rs. 100/- per annum from date of suit up to date of recovery of the property. The appellant before this Court was also the appellant before the lower appellate court. In that appeal he questioned the decree for recovery, and challenged the decree for mesne profits decreed but paid court fee on the appeal memorandum on the market value of the property and the value of profits that bad accrued from the date of suit till the date of appeal before the lower appellate court. The appeal having been dismissed, the second appeal before this Court was taken but in this appeal court fee bad been paid only on the market value of the property. The appeal memorandum contained a ground, ground No. 12, challenging the grant of relief to the plaintiff by awarding mesne profits from date of Suit. Counsel for the appellant made it clear at the beginning that that ground may be deleted and an application has been filed for deleting the ground. We by separate order allowed that application. The appeal memorandum now stands with n