Patkar, J

[1] This is a suit brought by the plaintiff to recover two years rent and possession of the property with masne profits and costs. The plaintiff paid Court-fee on Rs. 156-5 0. The learned Subordinate Judge held that he ought to have paid Court-fees on Ea. 3,000 on the ground that the net profits from the land during the year next before the date of presenting the plaint were Rs. 200 and that the value of the land was deemed to be fifteen times the net profits under Section 7, Clause 5, Sub-clause (c), of the Court-Fees Act, and on the plaintiff s failure to pay the Court-fee stamp the plaint was rejected. On appeal, the learned Assistant Judge confirmed the decision of the learned Subordinate Judge.

[2] On second appeal, a preliminary point was raised on behalf of the respondent that where the Judge allots a particular kind of suit to any of the clauses of the Court-Fees Act, he has jurisdiction to decide the question of valuation and under Section 12 of the Court-Fees Act, no appeal would lie. It is urged that in cases falling under Section 7, Clause 4, the valuation rests with the plaintiff and under Article 17 of the Court-Fees Act the valuation is fixed and therefore in these cases the Court has no jurisdiction to decide the question of valuation and an appeal would He, but in other cases the Court has jurisdiction to decide the question of valuation and therefore an appeal would not lie under Section 12 of the Court-Fees Act. On behalf of the respondent reliance has been placed on the decision in Dada v. Nagesh (1898) I. L. R. 23 Bom. 486, 488, where it was held that an appeal would lie from decision on the question as to the class under which a suit falls, and reliance is also placed on the decision in Studd v. Mati Mahto (1901) I. L. R. 28 Cal. 33

1. It appears somewhat difficult to reconcile the decision of the full bench in Vithal Krishna v. Balkrishna Janardan (1886) I. L. R. 10 Bom. 610, 614, 615, F. B. with the remarks in the case of Dada v. Nagesh. It was held in Dada s case that an appeal lies against a decision as to the class to which a suit belongs although it does not lie against a decision as to the valuation of the suit in that class. The same view was taken in Studd v. Mati Mahto and Tara Prasanna Chongdar v. Nrisingha Moorari Pal (1923) I. L R. 51 Cal. 21

6. If we follow the decision in Dada v. Nagesh (1898) I. L. R. 23 Bom. 486, 488 an appeal would lie against the decision of the Subordinate Judge wrongly assigning a suit to a particular class in the Court-Fees Act. If, on the other hand, no appeal lies, the full bench decision has held that this Court can interfere in revision either under Section 622 corresponding to Section 115 of the Civil Procedure Code or Regulation II of 1827, Section 5.

[3] On the merits we have no doubt that the proper valuation for the present suit was Rs, 74-15-6, Rs. 51-5-0 is the amount of the arrears of two years rent with interest and under Clause xi (cc) of Section 7 of the Court-Fees Act, one year s rent Rs. 23-10-6 would be the proper valuation of a suit for recovery of immoveable property from a tenant, including a tenant holding over after the determination of a tenancy. The plaint in the present case, therefore, would be properly valued if the Court-fees are paid on Rs. 74-15-

6. As a matter of fact, the plaintiff has paid Court-fees on valuation of Rs. 156-5-0. We think, therefore, that the learned Judge was wrong in rejecting the plaint.

[4] We would, therefore, reverse the orders of both the Courts rejecting the plaint and direct the Subordinate Judge to try the suit on the merits. Each party to bear his own costs throughout.

Baker, J.

[5] I agree. It has been held by practically all High Courts that Section 12 of the Court-Fees Act applies merely to the valuation of the property for the purpose of calculating the Court-fee when there is no question as to the Schedule of the with reference to which the valuation is to be made, and it does not apply to cases in which it is contended that the property has been wrongly valued and that the relief has been improperly estimated by putting it under a wrong article of the Schedule in the. This has been held by the Calcutta High Court in In re Omrao Mirza v. Mary Jones (1882) 12 C.L. R. 148 and Studd v Moti Mahto (1901) I. L. R. 28 Cal. 334, by the High Court of Allahabad in Chunia v. Ramdial (1877) I. L. R. 1 All. 360, and by the High Court of Madras in Annamalai Chetti v. Cloete (1881) I. L. R. 4 Mad. 204 and Kanaran v, Komappan (1890) I. L. R. 14 Mad 169. Some difficulty might arise on account of ertain expressions in the full bench case of Vithal Krishna v. Balkrishna Janardan (1886) I.L.R. 10 Bom. 610, 614, F.B. But as a matter of fact that case has been considered by this Court in Dada v. Nagesh, which expressly refers to it and there is also the case of Sardarsingji v. Ganpatsingji (1892) I.L.R. 17 Bom. 56, and the effect of all these cases is that an appeal lies against a decision as to the class to which a suit belongs although it does not lie against a decision as to the valuation of the suit in that class. I, therefore, agree that the appeal lies.

[6] That being the case, on the merits there can be no doubt that the suit in question is covered by Clause xi of Section 7 of the Court-Fees Act, and therefore, the fees payable are to be calculated according to the amount of the rent of the immoveable property to which the suit refers payable for the year next before the date of presenting the plaint.

[7] The order of the lower Court is, therefore, wrong and it should be sat aside.