Varadachariar, J

[1] This Revision Petition raises a question of court-fee. The plaintiff-petitioner, who is a Mittadar, brought the suit for a declaration that in respect of certain lands in his mitta he is entitled to take water from the Cauvery free of irrigation cess and for a refund8 of a sum of Rs. 50 and odd which, according to him, had been illegally levied from him. The Court below has called upon the plaintiff to pay court-fee under Section 7, Clause (iv)(c) of the Court-Fees Act read along with the proviso added by the Madras Amendment to that clause. In effect it has held that the plaintiff should value the suit and pay court-fee on the basis of half the value of the plaint-mentioned properties calculated under Clause (v) of Section 7.

[2] In the Revision Petition it has been contended before me that this is not a correct view. It is not impossible to read the plaint in such a way as to make the prayer for declaration ancillary to the prayer for refund. But assuming for the sake of argument, that the two prayers have to be read independently, the case will fall, no doubt, under Section 7 Clause (iv)(c) of the Court-Fees Act. The only question is whether the proviso added to that clause by Madras Act V of 1922 applies to the present case. The amendment provides for a case where "the relief sought is with reference to any immoveable property". It seems to me that the prima facie interpretation of that expression is that the dispute should in some sense relate to the title to immoveable property. This is obviously Jackson J s opinion in In re Venkatakrishna Pathar (1926) 52 M.L.J. 12

1. The learned Judge points out the difficulties and anomalies to which any other construction will lead. It is true that in that case the lower court had asked the plaintiff to pay court-fee on the basis of the Madras amendment to Section 7, Clause (iv)(c). But there was no complaint against it by the plaintiff, and the learned Judge had only to deal with the defendant s contention that the suit must be valued as one for possession.

[3] The way, Jackson, J. distinguishes Vaiyapuri Chetty v. Ramachandra Thevar (1925) 21 L.W. 699 shows the inclination of his opinion.

[4] The observation of the learned Judge that inasmuch as the relief sought is the declaration of the right of easement, the relief may be said to be with reference to immoveable property.

Must be understood in the light of the succeeding observation that the proviso should be read with the clause, so as to make with reference to "mean" involving the possession of land, houses or gardens; and then the proviso would not be applicable to easements at all.

[5] If the suit is substantially one for easement, it will fall not under Sub-clause (c), of Section 7 (iv) but under Sub-clause (e), and the Madras amendment introduces a proviso only to Sub-clause (c) and not to Sub-clause (e).

[6] In the present case, there is no dispute about the plaintiff s title to his mitta; nor is he seeking a declaration even in respect of a right of easement in the strict sense. He is merely asking for an immunity from assessment. It seems to me to be putting a very unnatural interpretation on the words of the proviso to say that in the present suit relief is sought with reference to immoveable property. I would also point out that the words "the relief sought" in the proviso must be read as relating to the words "consequential relief" in Clause (c) of the main Act. If so, the consequential relief in the present case does not relate to immoveable property at all, but is only a claim for recovery of money. I am therefore of opinion that the case does not fall within the proviso added by Madras Act V of 1922 and that the suit was properly valued in the first instance.

[7] The order of the lower Court is accordingly set aside. The petitioner will be entitled to his costs in the Civil Revision Petition.