JUDGMENT :

Pankaj Purohit, J.

This writ petition has been filed under Article 227 of the Constitution of India, whereby the petitioners- defendants have put to challenge the judgment and order dated 29.09.2021, passed by learned IV^th Additional District Judge, Dehradun, in Misc. Civil Appeal No.91 of 2019, Smt. Mamta Agarwal Vs. Smt. Ankita Agarwal and others, whereby the misc. civil appeal filed by the respondent no.1-plaintiff was allowed and the judgment and order passed by learned trial court dated 16.10.2019 whereby issue nos.3 and 4 were decided in favour of the petitioners-defendants and against respondent no.1-plaintiff, was set aside.

2. Facts of the case in brief are that an Original Suit No.410 of 2016, Mamta Agarwal Vs. Ankita Agarwal and others, was instituted in the court of learned I^st Additional Civil Judge (S.D.) for permanent injunction as well as mandatory injunction (subsequently relief (B) was added by way of an amendment) for delivery of possession of the suit property. The suit was filed by the respondent no.1-plaintiff on the premise that the petitioner-defendant nos.1 and 3 were the licensee of the respondent no.1- plaintiff and after revocation of the license the respondent no.1-plaintiff wanted to recover the possession of the suit property.

3. Separate written statements have been filed by the petitioner-defendant nos.1 and 2. In the written statement a plea has been taken that the court fees has not been properly paid by the respondent-plaintiff.

4. The learned trial court has framed the following issues which are extracted hereinbelow:-

3. D;k oknh }kjk okn dk lgh ewY;kadu fd;k x;k gS\

4. D;k oknh }kjk i;kZIr U;k;“kqYd vnk fd;k x;k g\S

5. These issues were decided by the learned I^st Additional Civil Judge (S.D.) vide judgment and order dated 16.10.2019 and the respondent no.1-plaintiff was directed to pay the court fees ₹1,04,920/- on the basis of the market value of the property i.e., ₹13,93,500/-. So far as the court fees for relief ‘A’ permanent injunction, it was concerned was found to be up to date.

6. It is feeling aggrieved by order and judgment dated 16.10.2019 respondents-plaintiffs moved a misc. civil appeal before the learned District Judge, Dehradun, which was registered as Misc. Civil Appeal No.91 of 2019, Mamta Agarwal Vs. Ankita Agarwal and others. So far as issue no.4 is concerned. The civil appeal filed by the respondent no.1-plaintiff was allowed by the judgment and order dated 29.09.2021 by the learned IV^th Additional District Judge, Dehradun, and the order passed by the trial court dated 16.10.2019 was set aside. It is feeling aggrieved the petitioners-defendants nos.1 and 3 are before this Court.

7. It is contended by learned counsel for the petitioners-defendants that the respondent no.1-plaintiff by the relief B prayed for delivery of the possession, but the relief was so worded that it appears to be a mandatory injunction for delivery of possession from the petitioners- defendants. Actually by relief B the vacant possession of the property was recovered.

8. Learned counsel for the petitioners-defendants has drawn attention of this Court to Section 7 (v) II of the Court Fees Act, 1870 (hereinafter referred to as “the Act”) which is quoted hereunder:-

“where the subject-matter is a building or garden–according to the market-value of the building or garden, as the case may be.

9. Learned counsel for the petitioners-defendants submits that here in the case in hand that the possession of a building was sought to be recovered and therefore the provision of Section 7 (v) II of the Act shall be attracted and therefore the trial court was justified in asking the petitioner to deposit the court fees on the basis of the market value of the building from where the possession was sought to be recovered. Thus the valuation of the suit was rightly made on the market value of the building.

10. Per contra, learned counsel for the respondents- plaintiffs has drawn attention of this Court to para no.11 of