The word 'land' used in Section 7(v) includes houses and gardens, when such houses and gardens are appurtenant thereto.

Bose, J—There is a conflict of principle between Pollock J. and myself on a question of court-fees which I think should be settled by a Division Bench.

2. The suit, in so far as the question before me is concerned, is for possession of two things: (1) a one anna village share and (2) two sir fields.

3. In one of the two sir fields there is an orange garden.

4. The suit also seeks other reliefs but there is no longer any dispute regarding the court-fees payable on those reliefs. The question here is, therefore, confined to the two items set out above.

5. In Ganpatrao Manaji v. Parashram, 1937 AIR(Nag) 100 Pollock J. held that a suit of this kind (except for the orange garden with which he was not concerned) is governed by Section 7(v)(b). His reasoning is that when a Plaintiff sues for possession of an entire village be pays court-fees under Section 7(v)(b) and does not pay separately for the sixteen annas malguzari share and separately for the sir and the khudkasht, accordingly, when a share in the village is claimed together with the sir and khudkasht appertaining to it Section 7(v)(b) will still apply.

6. The converse reasoning is this. If a co-sharer in the village sues a stranger for possession of a sir or khudkasht field alleging that he has been illegally dispossessed he pays advalorem court-fees on the market value of the land. It is illogical, therefore, to require a lesser court-fee when there is added to such a claim a claim for possession of the village, or a share in the village. However, that is not where the conflict lies in the two reported cases.

7. At page 49 of the Central Provinces Taxing Decisions 1936-1943 (Hiptulla Bhai v. Gulam Abbas) I held that if revenue paying laud has buildings or a garden on it then court-fees must be paid ad valorem under Section 7(v)(e) on the market value because Section 7(v)(b) applies only to cases where the bare land is in dispute and not to land which has buildings and/or a garden on it.

8. This raises a conflict in principle between Pollock J., and myself. According to Pollock J., if possession of the entire village is claimed then Section 7(v)(b) applies regardless of what may be in that village, that is to say, regardless of valuable houses and gardens situate in it. According to me Section 7(v)(b) dogs not apply to land which has buildings and gardens on it, and therefore, when possession of land of that sort is claimed court-fees must be paid ad valorem.

9. I, therefore, refer the following question for the decision of a Bench:

When a Plaintiff sues for possession of a one anna share in a village and also for possession of sir fields with an orange garden in one as appurtenant to that share are court-fees payable separately under Section 7(v)(b) on the village share and the sir fields (excluding the one with the orange garden), and under Section 7(v)(e) in the sir field with the orange garden, or is one composite fee payable on the los under Section 7(v)(b)?

10. Cases of other High Courts, which also differ among themselves, will be found collected in Chitaley's Court-fees Act, p. 244.

11. It is argued on behalf of the non-applicant that no revision lies but that has been settled by the Full Bench in Balaji Dhumaji v. Mst. Mukta Bai, 1938 AIR(Nag) 122 F.B. If additional court-fees are demanded as here the matter is revisable.

OPINION

Mudholkar J.

12.

13. (D/- 12-4-1949)-This case has come up before this Bench upon a reference by Bose J. (as he then was). The question referred to by him is as follows:

When a Plaintiff sues for possession of a one anna (sic) in a village and also possession of sir field with an orange garden in one as appurtenant to that share, are court-fees payable separately under Section 7(v)(b) on the village share and the sir fields (excluding the one with the orange (sic) garden) an under Section 7(v)(e) on the sir field with the orange garden, or is one composite fee payable on the lot under Section 7(v)(b)?

13a. In the suit, out of which this reference a