The calculation of Court-fee for possession of a house should be based on the rent payable for the year before the suit was presented, in accordance with the facts existing when the cause of action accrued.

1. The question referred for the decision of the Bench is whether the Court-fee to be paid on the claim for possession of a house which is included in the plaint is to be calculated on the market-value of the house under Clause v(e) of Section 7 of the Court-fees Act or on the rent payable for the year next before the institution of the suit under Clause xi (cc) of the same section.

2. The plaintiff sued for possession of the house and arrears of rent on the following allegations: On the 12th of March 1908 he let it to Gulam Husen, father of the two defendants, for eleven months at a rent of two rupees a month, and Gulam Husen executed what is called a rent-note stating those terms. He continued to occupy the house on the same terms till his death on the 17th of August 1916 and then the first defendant Gulam Ahmad agreed to continue to do so, and did so with his brother the second defendant. Thereafter they paid no rent and were frequently told to pay up or quit. Eventually the plaintiff' gave them a written notice on the 4th of December 1923 to quit at the end of the month, but they failed to do so. The present suit was therefore filed on the 19th of February 1924 for the recovery of possession from the defendants and for Rs. 70 as the rent for the last two years and eleven months.

3. The calculation of the Court-fee pay-able on the claim for possession purports to be made under Clause xi(cc) of Section 7 of the Court-fees Act, the claim being treated as one for the recovery of immovable property from a tenant holding over after the determination of the tenancy. In that case the basis for the calculation of the Court-fee is the rent payable for the year next before the date of presenting the plaint, that is Rs. 24. In the plaint however it is stated that the Court fee is based on the rent for two years', and even that is put down as Rs. 96, which is the rent for four years.

4. The defendants raised the plea that the plaint was not sufficiently stamped, as the Court-fee payable on the claim for possession should be calculated on the market-value of the house under Clause v(e) of Section 7. This is perhaps the commonest of the many pleas that are invariably taken just because they are there to take without any thought of the profit or loss resulting from their success. The defendants could not possibly get any advantage out of the payment of a higher fee by the plaintiff, even if he failed in his suit and would have to pay it themselves if he succeeded. There can no objection to vigilant defendants looking after the interests of the public revenues, even at their own expense, but it would ordinarily be wiser to leave that to the Court, whose business it is. These defendants not only took the plea and pressed it successfully, but they contested the plaintiff's appeal against the order on it and have contested his application for revision of the appellate order in this Court, and also in both the lower Courts they urged and tried to prove that the market-value of the house was higher than it was found to be.

5. It has been held in both the Courts below, on the authority of this Court's ruling in Champat v. Balakdas, 1925 AIR(Nag) 131, that the Court-fee on the claim for possession is payable on the market-value of the house under Clause v(e) of Section 7 of the Court-fees Act, not on one year's rent under Clause xi(cc) of that section. The plaintiff contends that that ruling is mistaken arid has applied for revision of the order, having obtained an extension of the time within which the balance of Court-fee is to be paid till the case has been decided. One of us doubted the correctness of the view set out in Champat v. Balakdas, 1925 AIR(Nag) 131 and accordingly referred the case to a Bench.

6. The view taken in the case mentioned was that a tenant by express disagreement became a trespasser and not a tenant holding over as soon as he refused to comply with a proper notice to quit. It was accordingly held that a suit for recov