Chakravartti, J.:— This Rule is directed against an order dated 13th February 1947, passed by the learned Subordinate Judge, 1st Court, Midnapore, whereby he valued a suit brought by the petitioner at Rs. 7,550 for the purposes of court-fees. The question is whether this valuation is correct and it has arisen out of a series of facts which are rather complicated.

2. It appears that the plaintiff originally brought a suit in the Court of the 2nd Munsif of Midnapore for recovery of possession of the lands of a certain holding on the allegation that the opposite party had wrongfully dispossessed him there from after serving a notice under Section 87 of the Ben. Ten. Act. It was alleged that the plaintiff had a right of occupancy in the lands, and that he had never abandoned them. The cause-title of the suit described it as a suit for recovery of possession after declaration of the plaintiff's title and an appropriate prayer was included among the prayers made in the plaint. The suit was valued at Rs. 300.

3. The opposite party objected to valuation of the suit as given in the plaint and the learned Munsif, proceeding to determine the valuation for the purposes of jurisdiction, held it to be “about Rs. 7000.” Acting on that finding, he naturally held that he had no pecuniary jurisdiction to try the suit and directed the plaint to be returned to the plaintiff for presentation to the proper Court. The plaintiff thereupon preferred an appeal against this order, but unsuccessfully. The learned District Judge, who again confined himself to the question of valuation for the purposes of jurisdiction, held that the proper valuation of the suit would be “about Rupees 7550.” He left the question of valuation for the purposes of court-fees to be decided by the Court in which the plaint would be ultimately filed. The plaint was then filed in the Court of the First Subordinate Judge at Midnapore and the valuation given was Rs. 7550 as determined by the District Judge, but the plaintiff also filed an application along with the plaint, asking for an amendment thereof so as to delete the description of the suit as one for declaration of title as also the relevant prayer asking for relief in accordance with that description. This amendment was allowed. It appears that the opposite party thereafter moved this Court in revision against the order of the Subordinate Judge allowing an amendment of the plaint. But this Court refused to interfere, although it observed that the opposite party would not be precluded from raising any question that might be open to him on the question of court-fees.

4. The question of valuation for the purposes of court-fees thereafter came to be considered by the learned Subordinate Judge who held that the valuation ought to be Rs. 7550 which was the figure already determined for the purposes, of jurisdiction. As already stated, it is against this order that the present Rule was obtained by the petitioner.

5. Mr. Ghose who appears on behalf of the petitioner contends that the learned Judge of the Court below was in error in holding that the valuation for the purposes of court-fees should be the same as the valuation already determined for the purposes of jurisdiction. In so holding, Mr. Ghose contended, the learned Judge was really reversing the true order prescribed by Section 8 of the Suits Valuation Act. That section, it was pointed out, said that the valuation for the purposes of jurisdiction would be the same as the valuation for the purposes of court-fees, but not vice versa. Even if the valuation for the purposes of jurisdiction had been fixed at a different figure, Mr. Ghose contended, nevertheless the Court would have no jurisdiction to demand of his client any fees higher than those properly chargeable under the Court fees Act. According to him, the suit as it now stood, came under Section 7(xi)(e) of the Court-fees Act, and his client was liable only to pay court-fees

“according to the amount of the rent of the property payable for the year next before the date of the presentation of the plaint.”

6. When the rule came up for hearing on a previous occasion, it was directed that notice should be given to the Province of Bengal since a question of court, fees was involved. In response to the notice given, Mr. Lahiri has appeared before us on behalf of the Crown and strenuously opposed the Rule.

7. The learned Judge has placed his decision on three grounds. He has held in the first place that the plaintiff could not be said to have been “illegally ejected” on the facts of the present case and accordingly the suit did not come under Section 7(xi)(e) of the Court-fees Act. In the second place he has said that since the valuation of the suit, for the purposes of jurisdiction had already been determined to be Rs. 7,550 and since, if the suit were held to be a suit under Section 7(xi)(e) of the Court-fees Act, it would be a suit for which the valuations for the purposes of court-fees and jurisdiction should be the same under Section 8 of the Suits Valuation Act, the contention of the plaintiff could not be given effect to and a lower valuation fixed for the purposes of court-fees without violating the said section. His own conclusion was that the suit fell under cl. (v) of S. 7, being a suit for possession of land.

8. On the three grounds given by the learned Subordinate Judge, two can be disposed of at once. It was not for him, while determining the question of court fees, to come to any decision finally as to whether or not the plaintiff had been illegally ejected. All that he had to consider was whether the allegations contained in the plaint made out a case of illegal ejectment. It was not contended before us that the plaint did not contain such an allegation and accordingly it must be held that the first ground on which the learned Judge rejected the plaintiff's contention is not a valid ground at all.

9. As regards the second ground, it is only necessary to point out that in holding that the court-fees for the purposes of jurisdiction having already been determined, the Court had no alternative but to fix the same valuation for the purposes of court-fees, the learned Judge was obviously inverting the order prescribed by S.S Suits Valuation Act. As Mr. Ghose contended, it is not the valuation for the purposes of court-fees which is to be determined by the valuation for the purposes of jurisdiction but vice versa.

10. In so far as the third ground is concerned, we are of opinion that the learned Judge is not right in holding that the plaintiff's suit is a suit for possession of land of the kind contemplated by Section 7(v) of the Court-fees Act. It is, in our opinion, a suit under S. 7(xi)(e) which speaks of a suit “to recover occupancy of immoveable property from which a tenant had been illegally ejected by the landlord.” But even if that be so, a further question arises as to how the proper valuation of the suit for the purposes of court-fees can be adjusted to the valuation said to have been determined already for the purposes of jurisdiction.

11. Mr. Lahiri, who appeared on behalf of the Crown, insisted that the Court was not only entitled but also bound to consider the issues raised by the defence in determining the proper valuation for the purposes of court-fees. The defence had raised a question of title and the Court was bound to pay regard to it in determining the nature of the suit. We are entirely unable to accept that contention. Reliance was placed by Mr. Lahiri on the case in 24 C.W.N 151.1 We do not see how that case can be of any assistance to him. All that was said in that case was that where at the end of the trial it was found that there was no relationship of landlord and tenant between the plaintiff and certain of the defendants, the suit, as framed, could not succeed against them, and the plaintiff could obtain relief only if he agreed to convert his suit into one for declaration of title and recovery of possession on payment of appropriate court-fees. Their Lordships did not say that the plaintiff was liable to pay any higher or further court-fees' on the suit as framed. Indeed, it is firmly settled that the nature of the suit must be determined from the plaint alone and not from defences raised.

12. Mr. Lahiri next contended that a suit under Section 87(3) of the Ben. Ten. Act was not the kind of suit contemplated by Section 7(xi)(e) of the Court-fees Act. He contended that a suit under Section 87(3) must necessarily involve a prayer for declaration of title and if the question of title was involved, then whether the plaintiff specifically asked for a declaration or not, his suit could not be one that came under Section 7(xi)(e) of the Court-fees Act. We are unable to accept this contention either. Sub clause (e) of cl. (xi) of S. 7 speaks of a suit “to recover the occupancy of immoveable property from which a tenant has been illegally ejected by the landlord.” The phrase “illegally ejected by the landlord” came to be considered by this Court in 16 C.L.J 375.2 Mookerjea, J., who delivered the judgment of the Court, observed on the true meaning and effect of the clause as follows:

“The clause does not describe the suit as one for recovery of possession by a tenant who has been dispossessed by his landlord; the suit mentioned is one for recovery of occupancy of land from which the tenant has been illegally ejected by the landlord, that is, ejected nominally in conformity with but really in contravention of, the provisions of the rent law for ejectment of tenants by landlords.”

13. It appears to us that S. 7(xi)(e), as so interpreted, exactly covers the type of case which the tenant can bring under Section 87(3) of the Ben. Ten. Act. We invited Mr. Lahiri to suggest a type of case which would properly come under sub-cl. (e) and would not involve some dispute as to title in the sense contended for by him. He was unable to give us any satisfactory instance. We are accordingly of opinion that the petitioner's suit does come under Section 7(xi)(e) of the Court-fees Act, as the learned advocate for the petitioner contended.

14. The question, however, still remains whether this suit must go on as one valued at one figure for the purposes of jurisdiction and at another figure for the purposes of court-fees although as a suit coming under Section 7(xi)(e) of the Court-fees Act, Section 8 of the Suits Valuation Act, would require the two valuations to be the same. It appears that in fact no such complication arises in the present case. The valuation for the purposes of jurisdiction which was determined by the Munsif and upheld by the learned District Judge on appeal, related to the plaint as originally framed. The plaint with which we are now concerned is not that plaint at all, but an amended plaint. To this, no valuation for the purposes of jurisdiction, already determined, is fastened. We are accordingly free to decide the valuation for the purposes of court-fees and direct the same valuation to be adopted for the purposes of jurisdiction without being embarrassed in any way by the previous valuation of the unamended plaint. If the suit is one under Section 7(xi)(e) of the Court-fees Act, as we have held it is, then the proper valuation would be the amount of rent paid for the year immediately preceding the institution of the suit which, according to the plaintiff, was Rs. 8-9-0. A suit of that valuation, it is clear, ought to be instituted in the Court of a Munsif. Had a valuation been already determined finally for the purposes of jurisdiction, there might have been some difficulty in directing the plaint to be presented now in the Court of a Munsif, but there being no such valuation, we consider that the suit ought now to be filed in the Court to which its proper valuation points as the appropriate Court.

15. Mr. Ghose who appeared on behalf of the opposite party contended that by getting the amended plaint returned and representing it before the Munsif's Court, the petitioner would, in fact, avoid the law of limitation and certain other provisions of law. We do not think that there is any force in this contention. All that we are deciding is the question of court-fees. If any other objection is open to Mr. Ghose's client, nothing that is said in this judgment will preclude the same being raised.

16. In the result the rule is made absolute. It is held that the petitioner's suit falls under Section 7(xi)(e) of the Court-fees Act, and its proper valuation would be the amount of annual rent paid immediately before the institution of the suit, that is to say, Rs. 8-9-0. The same will be the valuation for the purposes of jurisdiction. As a result of the valuation now determined by us, it is directed that the plaint be returned by the learned Subordinate Judge to the plaintiff for presentation to the proper Court. There will be no order for costs in the rule.

Sharpe, J.:— I agree.

S.C

17. Rule made absolute.