( Date 3-3-1965 )

Tare, J.

1. This revision under section 115 of the Civil Procedure Code is by the plaintiffs against the order, dated, 27-10-1964, passed by Shri R. C. Jain, First Civil Judge Class II, Indore, in civil suit No. 12-A of 1963, directing the plaintiffs not only to specify the valuation of the plot of land, but also the valuation of the superstructure, which the petitioners do not claim as their own and which they want to be demolished, after which they seek possession of vacant plot of land. The defendant raised an objection about valuation with reference to Court-fees and jurisdiction.

2. The learned judge of the trial Court ordered the plaintiffs to state the ad valo em valuation of the plot, as also the super-structure standing thereon, both for the purposes of Court-fees and jurisdiction relying on the observations of my brother, Sen, J. in Nilkanth Vs. Laxman 1965 JLJ-SN 52. Hence the present revision.

3. It is to be noted that the plaintiffs claimed possession of a plot of land, which only forms a portion of land revenue paying estate. The trial judge, in my opinion, was right in directing the plaintiffs to state the market value of the plot as required by section 7 (v) (b) of the Court-fees Act and Rule 2 of the M. P. valuation of Suits Rules. The portion did not represent any share in a revenue paying estate; and as laid down by Bose, J. in Hiptulla Bhai and others Vs. Gulam Abbas Taxing Decisions of the Nagpur High Court 1936-43 page 49, if the land represents a share of a revenue paying estate, then the Court-fees payable on that share might be accepted. On the other hand, if the plot is not a share, but merely a portion or a part of land revenue paying estate, then the plaintiff will have to pay ad valoram Court-fees on the market value of the plot. To that extent, I would affirm the view of the trial judge. There can be no doubt that the petitioners were required to pay ad valoram Court-fees on the market value of the plot of which they claimed possession in the present suit.

4. However, the further question arises whether they are also required to pay court-fees on the market value of the superstructure. In this connection, I may observe that the plaintiffs claimed relief regarding vacant possession of the plot after demolition of the super-structure. They do not claim ownership in or possession of the superstructure.

5. As regards this aspect, the trial judge relied on the observations of Sen, J. in Nilkanth Vs. Laxman (supra). Upon a perusal of the reasoning of my learned brother in the said case, I regret that I am unable agree with the conclusions arrived at by him.

6. In the said case, reliance has been placed mainly on the observation of Bose, C. J. in Gajanan Nanaji and others Vs. Rajeshwar Krishnaji and others ILR 1950 Nag 432. I may point out that the question raised in that case was one of jurisdiction, as also Court-fees. The suit was clearly for possession of a portion of a house which meant not only the land, but also the super-structure standing thereon. It was under those circumstances that Bose, C.J. held that the plaintiffs were required to value not only the land, but also the super-structure of which possession was being claimed.

7. At this stage, I may also refer to the observations of V. R. Sen, J. in Hiralal Vs. Nilkanth Civil Revision No. 14 of 1951, dated 18-12-1951=1953 NLJ Notes of Cases Note No. 64, wherein the learned judge, relying on the observations of Bose J. in Hiptulla Bhai and others Vs. Gulam Abbas and others (supra), Taxing Decisions of the Nagpur High Court 1936-43 page 49 held that if a plaintiff wanted possession of vacant land after demolition of the superstructure, he was not required to pay Court-fees on value of the superstructure, but only on the value of the vacant plot of land.

8. To the same effect was the view expressed by a Division Bench of the Allahabad High Court presided over by Desai and Beg, J. in Abdul Ghani Vs. Vishunath AIR 1957 Al