JUDGMENT:

The appellant/ 6th plaintiff has filed the present Civil Miscellaneous Appeal before this Court being aggrieved by the order, dated 30.03.2017, passed in O.S.GL.No. 1710 of 2017 by the Principal District Judge, Machilipatnam, (in short ‘the court below’).

2. The plaintiffs filed the suit for recovery of possession of the plaint schedule land from the defendant contending inter alia that the defendant took the plaint schedule land on an oral lease in the year 1993 on an agreed makta/rent of 5 bags of paddy for Dalva per year for the schedule land. The defendant claiming the rights over the plaint schedule property as vendee from the Kosanam Sesha Kota Mallayya and plaintiffs 5 and 6 and filed O.S.No. 391 of 2010 on the file of Principal Junior Civil Judge, Machilipatnam for specific performance of agreements of sale dated 24.10.1994 and 20.02.1995 respectively in respect of plaint schedule properties and the same is pending. The alleged two agreements of sale are forged and fabricated documents. Therefore, according to the plaintiffs, the defendant is not entitled to seek for specific performance. As per alleged endorsements on the alleged agreements of sale clearly postulates that the defendant was inducted as a tenant of the plaint schedule property and he cannot continue in possession of the suit schedule property as tenant in view of non payment of makta and for claiming adverse rights over his landlords. Therefore the suit is filed for eviction of the defendant from the plaint schedule property.

3. The court below took an objection about computation of court fee for the jurisdiction i.e the suit is between landlord and tenant. Hence how the court fee is computed under Section 29 of APCF and SV Act, as the suit is between landlord and tenant, the plaintiff has to pay court fee under Section 40(2) of APCF and SV Act. The Advocate represented that since the defendant claiming schedule land as vendee as such the plaintiff filed the suit and paid the court fee under Section 29 of Andhra Pradesh Court Fees and Suits Valuation Act, 1956 (in short ‘APCF and SV Act”).

4. On 30.03.2017, the court below after hearing submissions from the counsel, returned the suit for want of filing the suit before appropriate court holding that Section 40(2) of APCF and SV Act clearly mandates that plaintiff has to pay court fee basing on the premium or rent for the year. The plaintiff cannot compute court fee under Section 29 of APCF and SV Act. If the court fee is computed under Section 40(2) of APCF and SV Act the court below has no pecuniary jurisdiction to decide the lis. Assailing the said order, the present C.M.A came to be filed.

5. Heard Mr. Sivalenka Ramachandra Prasad, learned counsel for the appellant and none appears for respondents.

6. Perused the record.

7. During hearing learned counsel for the appellant vehemently reiterated the contentions as were urged in the grounds of appeal and mainly relied that it is a suit filed for recovery of possession of plaint schedule property and that Section 29 of APCF and SV Act would applies and as per said provision, the plaintiffs have paid the court fee. Section 40(2) of APCF and SV Act has no application as there is no relationship of landlord and tenant. But the court below erroneously came to a conclusion and returned the suit. Therefore, the C.M.A is liable to be allowed. 8. In support of the contention of the appellant, learned counsel for the appellant relied on a decision in “Telikapalli Sivarama Murty v. Debisetti Subba Rao”1, wherein it was held as follows:

“ It is clear that the plaintiff’s suit is based not only on

the relationship of land-lord and tenant but he asserts his title to

1 C.R.P.No.319 of 1967, dated 19.01.1968 = 1968(2) ALT 10 (NRC)

the suit property on the basis that his vendor had perfected title by adverse possession as against the legatees of the wife Chinnammayi. It is therefore not a case covered under Section

40(2) of the A.P.Court-fees Act.

9. It is the contention