JUDGMENT Sen, J. - The Petitioner made an application under sec. 88 of the Bengal Tenancy Act for the sub-division of his tenancy. The learned Munsif refused the application on certain grounds. Thereupon the Petitioner appealed under sec. 88, sub-sec. (6) of the Bengal Tenancy Act and the appeal was heard by the Subordinate Judge, 3rd Court, Alipore. He held that the appeal was incompetent on two grounds. First, he said that the decision of the Munsif was not one under sec. 88 and therefore sub-sec. (6) did not apply. Secondly he said that the appeal did not lie because the fee prescribed by sub-sec. (6) had not been paid by the Appellant. After holding the view that the appeal did not lie, the learned Subordinate Judge, in a perfunctory manner, dealt with the case on the merits and held that the appeal should also be dismissed on the merits. In our opinion, the learned Subordinate Judge is wrong in his view that the appeal is incompetent. Sub-sec. (6) of sec. 88 states that an appeal shall lie from an order of a Court under sec. 88. The learned Munsif held that the Petitioner and the Opposite Party were not co-sharers and on this ground refused the application. The learned Judge seems to think that this decision is not one which comes within the purview of sec. 88 of the Bengal Tenancy Act. I am quite unable to appreciate the reason for this view and the learned Advocate on behalf of the Opposite Party frankly states that he cannot support it. Sec. 88, sub-sec. (2) says that the Civil Court, on application made to it by one or more co-sharers for the division of a tenure or holding, may, by order in writing, direct such division. Clearly, the Civil Court hearing this application, is entitled to decide whether or not the applicant and the Opposite Party are co-sharers and a decision on this point is clearly a decision under sec. 88. The first ground upon which the appeal has been dismissed, therefore, is of no substance. 2. Sub-sec. (6) provides that an appeal shall lie from the decision of a Munsif provided that it is accompanied by the prescribed fee. Now, it is admitted that no fee has been prescribed by the Government. 88. The first ground upon which the appeal has been dismissed, therefore, is of no substance. 2. Sub-sec. (6) provides that an appeal shall lie from the decision of a Munsif provided that it is accompanied by the prescribed fee. Now, it is admitted that no fee has been prescribed by the Government. The learned Judge seems to think that the words " prescribed fee " mean the " mutation fee " mentioned in sub-sec. (4) Now, the word "prescribed" has been defined in sec. 3, sub-sec. (10) of the Bengal Tenancy Act. " Prescribed" means prescribed by the rules made by the Local Government under the Act. The " prescribed fee," therefore, cannot be the " mutation fee " mentioned in sec. 88, sub-sec. (4). The learned Advocate, appearing on behalf of the Opposite Parties, argues that although the learned Judge is not correct in his interpretation of the term "prescribed fee," nevertheless no appeal lies, inasmuch as the Local Government has not prescribed the fee. His argument is that the essential pre-requisite of an appeal is the payment of the prescribed fee and he contends that if no fee has been prescribed, no fee can be paid and, therefore, no appeal can be had. We are not impressed by this argument. We cannot accept the view that the Local Government by neglecting to prescribe the fee, can take away the right of appeal granted by sub-sec. (6). The reasonable interpretation of the sub-section would be that until the fee was prescribed, the appeal would lie without any fee being paid. In this view we hold that the learned Subordinate Judge is wrong in dismissing the appeal. We do not propose to enter into the merits of the case. All we need say is that if the learned Subordinate Judge wished to say anything about the merits, he should have gone into the matter thoroughly and come to a definite conclusion. The cursory manner in which he dealt with the merits renders his view utterly worthless. 3. We accordingly make the Rule absolute and direct that the appeal be heard on the merits by some other Judge. The Petitioner shall get his costs which are assessed at two gold mohurs. Mukherjea, J. I agree.