P L D 1957 (W (PLP)

KAIKAUS, J.‑

This is an appeal against the order of the Senior Civil Judge, Lahore, remanding a case in appeal on the ground that Court‑fee paid on the plaint was insufficient, and that is the only question for decision before me. According to the plaint, a house with its appurtenant land and buildings, measuring in all 29 kanals and 4 marlas, had been sold by the father of the defendants to the plaintiff in the year 1941 by a registered sale‑deed. Some time before the suit; the defendants are alleged to have encroached upon 2 kanals and 6 marlas out of the land which was included in the sale‑deed. The land which has been encroached upon is entered in the jamabandi, bears a khasra number (2255), and is not built upon. The contention of the appellant is that the suit is for possession of land, falling under section 7 (v) (b) of the Court‑fees Act, and, as the land is assessed to land revenue, Court‑fee is payable in accordance with the land revenue. The contention of the respondents, on the other hand, which has found favour with the learned Senior Civil judge is that the subject‑matter of the suit is a house within the meaning of section 7 (v) (e), and Court‑fee has to be paid according to its market value. Section 7 (v) of the Court‑fees Act divides immovable property into land, houses and gardens. It provides that Court‑fee is, in suits for possession of lands, houses and gardens, to be paid according to the value of the subject- matter, but for determining the value of the subject‑matter it provides different methods. In the case of land, Court‑fee is to be paid, in the first instance, in accordance with the land revenue, but, if that be not possible, it is to be paid on the not profits or on market value. In the case of a house or garden, it has to be paid on market value. The point for decision is whether the subject‑matter of this suit is a 'house' or 'land'. If the property in dispute in this suit falls within the definition of "house". Court‑fee has td be paid according to section 7 (v) (e), otherwise, the Court‑fee paid on land revenue would be correct. This area, as already stated, is not built upon, but learned counsel for respondents contends it is 'house' on the ground that it was part of the plaintiff's house. So the precise question for decision which emerges is whether a suit for a part of a house, which part is not built upon by itself, is to be regarded as a suit of which the subject‑matter is, in the words of section 7 (v) (e), a "house". It cannot be denied, in view of the sale deed which I have myself perused, that the whole of the property sold to the plaintiff constituted a house. The point is not covered by authority.. Applying my own mind, I find there is something to be said for each view. On the one hand, there is the consideration that the land, for which the suit is brought, does not by itself constitute a house and, according to section 7 (v) (e), it is only if the subject‑matter of the suit is a house that that subsection will apply. On the other hand, there is the consideration that: after all, what is being sued for is a part of a house, and ordinarily a part of something should not be different from that something. Also if I take into consideration only that for possession of which the suit is brought, liability to pay Court‑fee will depend upon the accident of the existence of some structure on the part which is encroached upon an j even upon the extent of that structure for a small structure may still not constitute the part sued for a house by itself. Should we, while determining the question of Court‑fee, look only to that for which suit is brought and consider whether the property by itself constitutes a house or should we look upon it only as a part of a larger unit of property ? I am inclined to adopt the first of the two interpretations. I feel that the argument that, according to section 7 (v) (b), it is only the subject‑matter of the suit that is to be considered has greater force. The least that can be said is that both interpretations are possible and if that be so, I would adopt the interpretation which places a lesser burden on the litigant. I would not hold in favour of a greater burden unless such was clearly the intention. I hold that Court‑fee paid on the plaint is sufficient. I accept this appeal and remand the case to the learned Senior Civil Judge for disposal of the appeal according to law. Costs of this appeal shall be costs in the cause. A. H. Appeal accepted.