The plaintiff is liable to pay ad valorem Court-fee on the relief of possession claimed by him, despite contending that the nature of the right is incapable of valuation.

Judgement

PANIGRAHI, J. :- This revision is directed against the order of the Subordinate Judge, Berhampur, calling upon the pltf to pay ad valorem Court-fee on his plaint. The pltf filed a suit for possession of certain lands alleged to be his Sardar Inam lands. The Revenue Ct in a suit brought under the Madras Hereditary Village Offices Act (Madras Act III (3) of 1895) proceeded on the assumption that the inam consisted of the emoluments arising from the lands and left it open to the pltf to establish his right to the land itself in a civil Ct. The pltf, thereafter raised this suit for establishing his right to the land as constituting a part of his emoluments in lieu of the Sardar service and prayed for possession of the land, and in the alternative prayed for partition of the same and possession of one-sixth share. The pltfs case primarily is that the land itself constituted the inam. If however the Ct should hold that it is not so. he wants to avail himself of the alternative remedy on the basis that the land would form a part of joint family property and would be available for partition. The pltf valued the occupancy right at Rs. 20,000/- but, for purposes of Court-fee, valued it according to Sch II Art. 17 A. His contention is that the nature of the right is such that it is incapable of valuation and has no market value, the sole basis for this argument being that the property is declared inalienable by S. 5 of the Madras Act III (3) of 1895. Despite the fact that the lands are inalienable it cannot be said that they are excommercium or that they are incapable of valuation: it may well be that on that very ground the property may have a larger value than otherwise. The pltf having sued for possession is liable to value it under S. 7, Court-fees Act. The pltf himself has assessed the value at Rs. 20,000/- and I fail to see how the argument that it is incapable of valuation can be reconciled with the pltfs valuation of the occupancy right at Rs. 20,000/-. After hearing Mr. Rao, Counsel for the petnr, we are satisfied that this is not a case which can be brought under Art. 17 A and we are of opinion that the order of the learned Subordinate Judge is correct and must be upheld, and would hold that the pltf is liable to pay ad valorem Court-fee on the valuation he puts upon the relief of possession claimed by him.

2. Mr. Rao, however, submits that he should be given permission to amend his plaint so as to reduce the valuation which he erroneously put at Rs. 20,000/-. That is a course which he may adopt in the lower Ct if he so chooses. But it is not for us to pronounce any opinion on the step he proposes to take. It will be for the lower Ct to adjudicate upon such a petn properly filed in due course by the pltf and to dispose it of on merits. So far as the principle on which Court-fee is to be paid is concerned, we hold that the order of the learned Subordinate Judge is correct and should be upheld.

This revision fails and is dismissed with costs. Hearing fee - two Gold Mohurs.

3. RAY, C.J. :- I agree.

Revision dismissed.