JUDGMENT M.N. Shukla, J. - This writ petition raises a point of Court-fee which is of considerable importance, on which there is no direct decision on all fours and in examining which reference is often made to proceeding which lay down seemingly contradictory principles of law. The point shortly stated is : "When a plaintiff asserting to be a tenant sues for possession of a shop claiming that the defendant is in its unauthorised and illegal possession as a trespasser, whether court-fee is payable under Section 7(v-B) (c) of the court-fees Act (as amended in its application to U.P.) or under Section 7(v)(ii) thereof". 2. Where learned Judge below relying on the authority of two Allahabad cases, AIR 1949 Allahabad 560; Chief Inspector of Stamps v. Sewa Sunder Lal and AIR 1965 Alld 496; Kanahiya Lal and another v. Satya Narayan Pandey, held that the subject-matter of the suit being the tenancy rights with respect to a shop and not the shop itself, or which the tenancy rights was in issue, court-fee had to be determined on the value at which the defendant's right to remain in the premises might be fixed. But in my opinion those authorities are plainly distinguishable and the relief claimed in the suit would already come within Section 7 (v)(ii) of the court-fees Act. 3. Respondent No. 3 Sheo Prasad filed suit No. 26 of 1978 in the Court of the Munsif City. Kanpur against the petitioners, Virendra Nath Aggarwal and Jitendra Nath Aggarwal and respondent No. 4. Jai Gopal for possession of Shop No. 3 in Premises No. 51/27. Naughara, Kanpur City and for damages on the allegations that the said defendants were in illegal and unauthorised possession of the disputed shop which was in the tenancy of the plaintiff and as such were liable to be evicted and also pay damages. The averments made in the plaint were that the plaintiff had been a tenant of the shop in suit by virtue of an allotment order dated 15.5.1965 and was carrying on the business of stationery therein, that defendant No. 1 Jai Gopal (respondent No. 4) fraudulently obtained possession of the said shop in March, 1972 and sold it to defendant Nos. 2 and 3 (petitioners) hence the suit. 4. 2 and 3 (petitioners) hence the suit. 4. The petitioners contested the suit on the ground that the allotment in favour of the plaintiff was 'Benami' and he was never a tenant of the shop nor was he in possession thereof in his own right, that the plaintiff was merely an employee of M/s. Parkash Paper mart and was paying rent on its behalf and respondent No. 4 was a partner in that business. It was further pleaded that after the cessation of his employment, the plaintiff had no legal interest left in the disputed premises that he was wrongfully trying to dispossess the defendants who carried stationery business in partnership in the aforesaid shop and the suit was maintainable. The plaintiff valued the suit on the relief for possession at Rs. 239.76 (annual rent of the shop), at Rs. 900/- for relief for damages and Rs. 25/- for pendente-lite and future damages. The defendants contested the suit and also raised the plea that the suit was undervalued and it ought to have been valued on the market value of the suit property and the court-fee paid was insufficient and on proper valuation the jurisdiction of the Munsif to try the suit would be ousted. 5. On the pleadings of the parties the learned Munsif framed a preliminary issue. "Whether the suit is undervalued and the court-fee paid is insufficient." 6. After hearing the counsel for the parties the learned Munsif by his order dated 20.2.1979 held that the dispute was in respect of tenancy rights, and therefore, the suit was rightly valued on the annual rent of the premises and the court-fee paid was sufficient. The defendants preferred a revision which was also dismissed by the impugned order of the learned Judge dated 20.8.1979. The prayer in the writ petition is for quashing of those two orders and directing the Court below to decide the question of valuation of the suit in the light of the observations made by this Court. The defendants preferred a revision which was also dismissed by the impugned order of the learned Judge dated 20.8.1979. The prayer in the writ petition is for quashing of those two orders and directing the Court below to decide the question of valuation of the suit in the light of the observations made by this Court. The petitioners contend that the law requires the suit to be valued under Section 7(v)(ii) of the U.P. court-fees Act according to the market value of the shop in question and in that event only the Civil Judge would have the jurisdiction to try the suit that by the erroneous orders which are under challenge in this petition the right of petitioners to get their dispute with the plaintiff tried by a superior Court of competent jurisdiction has been adversely affected. 7. Section 7(v) contemplates a suit for possession of lands, buildings or gardens and provides that in such suit the amount of court-fee payable shall be according to the value of the subject-matter; that sub-clause (ii) of clause (v) of Section 7 provides that where the subject-matter is a building or garden, the court-fee shall be paid according to the market value of the building or garden as the case may be. The question, therefore, arises as to what was the subject-matter of the present suit. The relief claimed in the plaint was clearly that of possession over the shop. Therefore, the subject-matter is nothing but the shop. It does not matter what the plaintiff's interest in the shop consists of, because the suit is not for possession of the lease-hold-rights those are intangible and are not capable of physical possession. The tangible physical entity of which possession was sought is the shop, hence the subject-matter of the suit, so far as possession is concerned, is the shop. We are not concerned with the object of the suit but rather with its subject-matter. The object may be that of enforcing only the tenancy rights of plaintiff but the subject-matter is the shop. The dim object underlying the plaintiff's action is a matter of abstract speculation which is not germane to the realm of law Courts which exist primarily for the purpose of granting practical reliefs, arising with respect to some tangible subject-matter. In the instant case such subject-matter is the shop or building of brick and mortar' and not incorporeal jural rights. The dim object underlying the plaintiff's action is a matter of abstract speculation which is not germane to the realm of law Courts which exist primarily for the purpose of granting practical reliefs, arising with respect to some tangible subject-matter. In the instant case such subject-matter is the shop or building of brick and mortar' and not incorporeal jural rights. Thus, where a tenant brings a suit for possession of the shop against a third party, who has dispossessed him from the shop, the subject-matter of the suit is the shop itself and not the tenancy right of the plaintiff and, therefore, the court-fee is payable under sub-clause (ii) of clause (v) of Section 7 of the Act on the market value of the shop. 8. The learned counsel for the plaintiff drew my attention to the Division Bench ruling, reported in Chief Inspector of Stamps v. Sewa Sunder Lal, (supra) in which it was observed that a suit by a tenant in respect of land was analogous to a suit under Section 7 (v-B). In that case the suit was not for possession but for declaration and injunction. It was a suit by a sitting tenant against an allottee, seeking to evict him. The reliefs claimed were that the allotment order be declared null and void, that the defendants be the restrained from interfering with the possession of the plaintiff so long as the tenancy continued and was not legally determined. The suit clearly fell under Section 7(iv)(a) of the court-fees Act, being one for declaration with consequential relief in the shape of injunction. Moreover, in the case of Sewa Sunder Lal (supra) it was held only for the purposes of court-fee that the market value of the property in which plaintiff had only tenancy right could be fixed at one year's rent by applying the analogy of clause (v-B) (c). The question as to how the property should be valued for purposes of the Suits Valuation Act was not decided. In the present case the suit is for possession and would be governed by the provisions applying to possession. The ruling relied upon is wholly distinguishable on facts. Moreover, there is nothing in the language of Section 7(v)(ii) to restrict it to cases in which a party claims proprietary possession of land, buildings, or gardens. In the present case the suit is for possession and would be governed by the provisions applying to possession. The ruling relied upon is wholly distinguishable on facts. Moreover, there is nothing in the language of Section 7(v)(ii) to restrict it to cases in which a party claims proprietary possession of land, buildings, or gardens. On its plain turns the above, provision is applicable to a suit for possession of a building and where the subject-matter is a building. Court-fee is to be computed on the market value of such building. The nature of the ultimate legal rights of the plaintiff in such building is wholly immaterial for the purpose of giving relief viz. possession over the shop, Section 7 (v-B) and its various sub-clauses are irrelevant for the purposes of the present suit because they apply only to suits for possession of 'land' and not 'building' or 'garden'. Similarly, the ruling reported in Kanhaiya Lal and another v. Satya Narain Pandey, (supra) is entirely beside the point. That was a suit for a declaration that the allotment order passed by the Rent Control and Eviction Officer be decided void in law and the defendants be restrained by means of a permanent injunction from taking possession of the accommodation in question as a tenant on the basis of the said order. That obviously fell within the ambit of Section 7(iv)(a) and different principles applied to it; Section 7(v) and its sub-clauses or their sub-provisions were inapplicable. Again in Kanhaiya Lal's case (supra) the Court adopted the analogy of clause (c) of sub-section (v-B) of Section 7 and applied its principle to a suit pertaining to the tenancy rights in an immovable property - I have already held hat the subject-matter of the suit for possession of a building is really the building itself and not the distilled essence of the nature of the plaintiff's rights arrived at in accordance with purely academic and abstract principles of legal thereof. Moreover, even Kanhaiya Lal's case is an authority only for the manner in which the amount of court-fee should be determined in a limited class in a suits i.e., those falling under Section 7(iv). It did not decide as to how the property should be valued for the purposes of the Suits Valuation Act. Moreover, even Kanhaiya Lal's case is an authority only for the manner in which the amount of court-fee should be determined in a limited class in a suits i.e., those falling under Section 7(iv). It did not decide as to how the property should be valued for the purposes of the Suits Valuation Act. Section 4 of the Suits Valuation Act specifically provides that the suits falling under clause (v) of Section 7 of the court-fees Act shall be valued for the purposes of jurisdiction at the market value of the property involved in or affected by the relief sought. The relief sought in the instant case is against the petitioners (defendants) for recovery of possession over the shop after their dispossession. The property affected by the relief is manifestly the shop itself. As sued for the purposes of suits valuation it is the market value of the shop which has to be taken into consideration and not the market value of the limited rights which the plaintiff may have in the disputed shop. The allegation made in the writ petition is that on a proper valuation the jurisdiction of the trial Court would be ousted and the petitioners shall not have the advantage of having their case adjudicated by a Court of higher jurisdiction. 9. Hence, it is my considered that to a suit for possession of a shop by a tenant against a trespasser, like the one before me, Section 7 (v)(ii) applies and not Section 7 (v-B) (c). I am in respectful agreement with the law declared by Chandra Prakash Sharma, J. in Hazari Lal v. Gulzari Lal and others, AIR 1975 Allahabad 279. The basic question which arose in all these cases was the meaning of the expression "the subject of the suit" I am inclined to extract a telling passage in Ratilal Mani Lal v. Chandulal Chhotalal, AIR 1947 Bombay 482 (DB), which aptly sums up the plaintiff's argument : "In plain English the subject-matter of a suit is what the suit is about. It is not the same thing as the object of the suit. The object of the suit is the claim, in other words possession of the house. The subject of the suit is the house. That also from the wording of Section 7(v), itself. It is not the same thing as the object of the suit. The object of the suit is the claim, in other words possession of the house. The subject of the suit is the house. That also from the wording of Section 7(v), itself. The section says that suits for the possession of land, houses or gardens are to be valued, according to the subject-matter and the sub-section goes on to say that where the subject-matter is land, the value shall be determined according to Clauses (a), (b), (c) or (d) and where the subject-matter is a house or garden, the value shall be deemed to be the market value of the house or garden. In other words the section contemplates the subject-matter of a suit for the possession of land as being the land and the subject-matter of a suit for the possession of a garden as being the garden and the subject-matter of a suit for the possession of a house as being the house and there is no suggestion to be derived from the section itself, or so far as I know, from anywhere else that the subject-matter ought to be taken to be anything view." 10. Before parting with the case I may briefly mention some other authorities also the which the learned counsel for the parties referred in their arguments. On behalf of the plaintiff-respondents strong reliance was placed on a Division Bench decision of this Court in Ramraj Tewari v. Girnandan Bhagat and others, XV Alld. 63, but that is clearly distinguishable. That was a suit by landlord against his tenant for possession of property leased on the basis of a fixed rate tenancy and not against a trespasser or a person in unauthorised or unlawful possession. In case of suits against a tenant the landlord is in proprietary possession of the property through the tenant and hence the subject-matter of the suit may be considered to be not the property itself but the tenancy rights. That is why on the facts of the case reported in Ram Raj Tewari v. Girnandan Bhagat and others, XV Alld. In case of suits against a tenant the landlord is in proprietary possession of the property through the tenant and hence the subject-matter of the suit may be considered to be not the property itself but the tenancy rights. That is why on the facts of the case reported in Ram Raj Tewari v. Girnandan Bhagat and others, XV Alld. 63, it was observed : "The subject-matter here cannot be treated as the land itself, as the landlord, plaintiff, has, through his tenants, proprietary possession, and what is really sought is to free the land from the possession of the tenants holding as tenants at fixed rates, that is, to get rid of the tenants and their tenant-rights." 11. The same ruling was followed by a Division Bench of the High Court of Patna in Mt. Barkatunnisa Begum v. Mt. Kaniz Fatma and another, AIR 1927 Patna 140, but that again is distinguishable on the same basis. That was a suit brought by an owner to eject the licensees at will from a house and on those facts the Court thought that the subject-matter was the right to eject the defendants and the value of the right was the value at which the defendants were to remain in the house under the licence of the plaintiff. It is trite that the owner is in proprietary possession of the property through his licensee. My attention was also drawn to a Division bench case of the Calcutta High Court in Mohammad Eshaque v. Mohammad Amin and others, AIR 1948 Calcutta 312, but the facts of that case were materially different. There the suit was brought by a Mutawalli for possession against the defendant who had set up, inter alia, a preferential right to the office of the Mutawalli but who did not dispute the property to be waqf property. In those circumstances it was held that advalorem court-fee should not be paid on the market value of the waqf property. As remarked by B.K. Mukherjee, J. paragraph 13 of the report : "The plaintiff was undoubtedly suing as mutawalli and he wanted to recover possession of properties admitted by the defendant to be waqf properties, solely in that capacity. In those circumstances it was held that advalorem court-fee should not be paid on the market value of the waqf property. As remarked by B.K. Mukherjee, J. paragraph 13 of the report : "The plaintiff was undoubtedly suing as mutawalli and he wanted to recover possession of properties admitted by the defendant to be waqf properties, solely in that capacity. The mutawalli is not the owner and he can be called upon to value his suit in accordance with his estimate of what the value of his rights as mutawalli of the properties would amount to. The Court can easily check this estimate and decide for itself on proper materials as to what the valuation should be." 12. A reference was also made to Single Judge decision of this Court in Rani Devi v. Tilok Singh and others, AIR 1980 Allahabad 111. That case was disposed of on the preliminary ground that no objection having been raised by the defendant to the sufficiency of the court-fee before the trial Court, it was not open to him to take the plea at the appellate stage and hence other observations made in that decision were 'obiter'. On the other hand, a conspectus of cases cited by the learned counsel for the petitioners lend support to the view which has found favour with me, see : 1. Ratilal Mani Lal v. Chandulal Chhotalal, (supra) 2. Gajanan Nandji and others v. Rajeshwar Krishnaji and others, AIR 1950 Nagpur 237 . 3. Smt. Anguri Devi v. Gurnam Singh, AIR 1951 Simla 238. 4. Mahabir Prasad v. Shamshuddin Ansari and others, AIR 1971 Allahabad 516. 5. Hazari Lal v. Gulzari Lal and others, (supra) 13. I am, of course, alive to the hardship which is likely to be caused to a landlord or tenant etc. who has to sue for possession against a trespasser and be obliged to pay court-fee on the market value of the property but we have to grant reliefs within the existing frame work of law and in () terpret the provisions as they exist; the hardship can be mitigated only if the Legislature steps in and suitably amends the law. To quote Macklin, J. from Ratilal Manilal's case (supra). To quote Macklin, J. from Ratilal Manilal's case (supra). "I can imagine hard cases arising out of this provision; I can imagine cases where paying the court-fee on the value of a house might in all the circumstances be can an unduly heavy price to pay in the event of the suit being lost. But we cannot do anything about that. The law seems to be as I have said, and if the law is harash, it can always be amended." 14. Therefore, the impugned order are quashed, the case is sent back to the Revisional Court which would now determine the market value of the shop itself under Section 7(v)(ii) of the court-fees Act or remit an issue to the trial Court for determining the same and also deciding whether it has jurisdiction to try the suit. In the result the writ petition succeeds and is allowed but in the circumstances of the case the parties are directed to bear their own costs. The stay order dated 21.1.1980 is hereby discharged.