Kulwant Sahay, J.This is an application on behalf of the plaintiff against an order of the District Judge of Gaya dismissing her appeal against an order of the Munsif returning the plaint for presentation to the proper Court on the ground that the value of the subject matter of the suit was beyond the pecuniary jurisdiction of the Munsif.

2. The suit was in relation to a house in the town of Gaya. The plaintiffs case was that the house belonged to her that she had allowed the Defendant No. 1 who is her daughter and the Defendant No. 2 who is the husband of the Defendant No. 1 to live in a portion of the house; that on account of the behaviour of the defendants towards her she was not willing to allow them to remain in the house any longer and that she served notices upon them to quit but they refused to quit the house.

3. She further stated in the plaint that the Defendant No. 1 had set up a title to the house under an oral, gift from the plaintiff and had made an application before the Vice-Chairman of the Municipality for registration of her name as owner of the house and that this application was refused on the objection of the plaintiff and that an application had been made to the Chairman of the Municipality with a similar prayer which had been subsequently withdrawn. The prayer portion in the plaint runs thus:

(1) On the determination of the plaintiffs proprietary interest as also on the determination of the fact that the defendants had never any right to reside in portion of the house and garden in suit against the plaintiffs wishes and that the position of the defendants is that of a licensee tenant at will, the defendants may be ordered to vacate the house and garden in suit.

(2) That to vacate the house and garden fifteen days time be allowed to the defendants and it may be directed in the decree that in case the defendants do not vacate and give up possession over the house and not garden within the time fixed by the Court, possession over the same may be delivered to the plaintiff and the defendants be prevented from going to the said house and lands.

(3) That Rs. 100 be awarded to the plaintiff as damages against the defendants.

One of the objections on behalf of the defendants was that the suit had been undervalued and that the Munsif had no pecuniary jurisdiction to entertain the suit. An issue was framed on the subject and the learned Munsif proceeded to determine this issue in the first instance. He held that the suit was for a declaratory decree and consequential relief and therefore the suit must be valued according to the valuation of the subject matter of the suit, namely, the house in dispute and that the Court-fee payable was u/s 7(iv)(c) of the Court-fees Act.

4. The learned District Judge has agreed with the Munsif and has affirmed the order of the Munsif returning the plaint for presentation to the proper Court.

The whole question is whether the suit as framed asks for a dilatory decree and for consequential relief. In my opinion the suit as framed is a suit for ejectment. The prayer for determination of the palintiffs title was only incidentally made in the plaint. It is not denied on behalf of the defendant that at the time they entered the house the plaintiff was the owner of the house. They set up a subsequent gift from the plaintiff.

5. Tae plaintiff denies that she made any gift to the defendants. If the defendants can succeed in proving the oral gift, the suit will certainly be dismissed; but the valuation of the suit is to be determined not upon the plea taken in the written statement but upon the allegagations as made in the plaint. The plaint merely asks for a decree for ejectment of the defendants. The case comes, in my opinion, u/s 7, Clause (v) of the Court-fees Act and the Court-fee payable is according to the market value of the subject-matter of the suit. The subject-matter of the suit is the right to eject the defendants and the value of that right is the value at which the defendants right to remain in the house under the license of the plaintiff may be valued: See Ramraj Tewari v. Girnandan Bhagat [1892] 15 All. 63. The plaintiff valued it at Rs. 400. The Court does not say that this valuation is an unreasonable one. The plaintiff, how ever, has put in a petition for leave to amend the plaint in order to make her position clear. In my opinion she ought to be given an opportunity to amend the plaint.

6. The order of the Munsif retnrning the plaint will therefore be set aside and the case remanded to him for consideration of the application for amendment of the plaint and for disposal of the suit according to law. The petitioner is entitled to her costs-one gold mohur.

Ross, J.

I agree.