Judgment N.K. Mody, J. 1. Being aggrieved by the order dated 12-9-2008, passed by 9th Addl. District Judge, Indore in C.S. No. 73-A/08 whereby application filed by respondent Nos. 4 and 7 under Order 7, Rule 11, Civil Procedure Code whereby the Court below directed to correct the valuation of the suit as per market value of land and pay ad valorem Court fee, present petition has been filed. Short facts of the case are that petitioner filed a suit against the respondents on 2nd July, 2008 for declaration, possession and permanent injunction alleging that petitioner is owner of a piece of plot situated at Vikas Apartment, Co-operative Housing Society, Film Colony, Indore, admeasuring 1500 Sq. Ft. which has been purchased by the petitioner vide sale deed dated 5-10-2001. The suit was valued at Rs. 60,000/- for the purposes of declaration and Court fees of Rs. 2,000/- was paid. So far as possession is concerned, it was alleged that plot in question is admeasuring 1500 Sq. Ft therefore, the Court fees @ Rs. 10/- is paid by valuing the land @ Rs. 10/- per acre. In the suit it was prayed that decree be passed against the respondents declaring that petitioner is the owner of the suit property and petitioner be put into possession of the property. An application was filed under Order VII, Rule 11, Civil Procedure Code by the respondents No. 4 and 7 wherein it was alleged that requisite Court fee has not been paid. Hence, the suit be dismissed. The application was opposed by the petitioner. 2. After hearing the parties, learned Court below directed the petitioner to value the suit as per the market value of the suit property i.e., plot and pay ad valorem Court fee, against which present petition has been filed. 3. This petition was dismissed vide order dated 14-5-2010 passed by Divisional Bench of this Court. Thereafter, a review petition was filed by the petitioner which was numbered as R.P. No. 169/2010 and was allowed vide order dated 17-9-2010 whereby the order dated 14-5-2010 passed in writ petition was recalled and the writ petition was re-registered on its original number, this is how the writ petition has come for hearing again. 4. Thereafter, a review petition was filed by the petitioner which was numbered as R.P. No. 169/2010 and was allowed vide order dated 17-9-2010 whereby the order dated 14-5-2010 passed in writ petition was recalled and the writ petition was re-registered on its original number, this is how the writ petition has come for hearing again. 4. Shri Vishal Baheti, learned counsel for the petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that the Court below committed error in directing the petitioner to value the suit as per market value of the land in question and to pay ad valorem Court fee. It is submitted that since the plot in question is an open piece of land and assessable to land revenue, therefore, it was not incumbent upon the petitioner to put the value of the plot on market value and to pay ad valorem Court fee. For this contention reliance is placed on the definition of "Land" as defined under section 2(k) of the Land Revenue Code, 1959 which reads as under : (k) "land" means a portion of the earth's surface whether or not under water; and, where land is referred to in this Code, it shall be deemed to include all things attached to or permanently fastened to anything attached to such land; 5. Learned counsel for the petitioner placed reliance on a decision in the matter of Narayan Vyankatrao vs. Nagubai Balaji, 1977 MPLJ 578 wherein this Court has held that merely by diverting the use of land for non-agricultural purposes and by constructing a house thereon, the land does not cease to be held in Bhumiswami rights. Moreover, when the definition in section 2(k) specifically provides that land shall be declared to include all things attached permanently to it the Courts are bound to give effect to the inevitable corollary and there is nothing to suggest that provisions of section165(1) are confined only to agricultural land or open land and will cease to apply if the land held by a Bhumiswami has been utilized for non-agricultural purposes. Further reliance is placed on a decision in the matter of Begum Shah Hussain vs. Attar Singh, AIR 1960 J and K 110 wherein while dealing with section 7(v)(b) of the Court Fees Act, Jammu and Kashmir High Court has observed that land does not mean only agricultural land. It was further observed that land capable of being used as a building site also included. 6. Learned Counsel further placed reliance on section 6(v) of Bombay Court fees Act which reads as under :-- "In suits for the possession of land, houses and gardens-according to the value of the subject-matter and such value shall be deemed to be where the subject-matter is a house or garden-according to the market value of the house or garden and where the subject-matter is land and -- (a) where the land is held on settlement for a period not exceeding thirty years and pays the full assessment to Government - a sum equal to [forty times] the survey assessment : (b) Where the land is held on a permanent settlement, or on a settlement for any period exceeding thirty years, and pays full assessment to Government a sum equal to [eighty times] the survey assessment; and (c) Where the whole or any part of the annual survey assessment is permitted- a sum computed under subparagraph (a) or subparagraph (b), as the case may be, in addition to [eighty times] the assessment or, the portion of assessment so remitted;" 7. Further reliance is placed on a decision in the matter of Madhaorao vs. The State of Maharashtra, AIR 1972 SC 45 wherein Hon'ble Supreme Court has held that in a suit for possession of land not falling under any clauses (a), (b) and (c) of section 6(i)(v) of Court fee will not be calculated under section 6(1)(v) but under some appropriate section of act to be determined by the trial Court. Further reliance is placed on a decision in the matter of Madhaorao vs. The State of Maharashtra AIR 1978 Bombay 344 wherein a suit for possession of tank claiming title and in alternate in regard to water right does not involve a grant of declaration, it was held by the Bombay High Court that suit would be covered by section6(iv) and a fixed Court fee of Rs. 15/- would be payable. 8. 15/- would be payable. 8. On the strength of aforesaid position of law, learned counsel submits that petition be allowed and impugned order passed by the Court below be set aside. 9. Learned counsel for the respondent supports the order. Learned counsel submits that since it is not the case of the petitioner that land revenue was assessed to the plot in question, therefore, no illegality has been committed by the learned Court below in directing the petitioner to value the suit for possession as per market value of the suit property and to pay the ad valorem Court fee. It is submitted that otherwise also the land in question which is in shape of plot is situated in urban area and is a part of marriage garden, therefore, for the purposes of Court fee it is the market value of the property which has to be assessed and ad valorem Court fees has to be paid accordingly. It is submitted that petition be dismissed. 10. Section 7 of the Court Fees Act deals with computation of fees payable in certain suits. Section 7(v)(c) and (d) which reads thus : 7(v) For possession of lands, houses and gardens. -- In suits for the possession of land, houses and gardens - according to the value of the subject-matter; and such value shall be deemed to be - where the subject-matter is land, and -- (c) where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue, and net profits have arisen from the land during the year next before the date of presenting the plaint - fifteen times such net profits; but where no such net profits have arisen therefrom - the amount at which the Court shall estimate the land with reference to the value of similar land in the neighbourhood; (d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as above mentioned the market value of the land. 11. 11. In the matter of Balu Deochand Kulmi vs. Dundibai Amichand Kulmi, 1971 MPLJ (F.B.) 987 = AIR 1972 MP 22 before the Full Bench of this Court the question was whether for purposes of assessing the Court fee in a suit regarding a fraction or part of a holding the whole of which is assessed to revenue or to payment of the nature of rent in the absence of revenue, the plaintiff should be required to pay the Court fee on his claim on the market value of the land under section 7(v)(d) of the Court fees Act, or whether the subject-matter should be allowed to be valued on the basis of the revenue payable on the entire estate and the plaintiff should be allowed to distribute the land revenue proportionately on the area claimed by him in the suit. 12. The aforesaid question was answered by the Full Bench of this Court as under: 28. For the abovesaid reasons, it is clear that where a suit is filed for a part of an estate or a share of an estate, but where such part or share of the estate is not separately assessed to land revenue, the Court fee is payable on the basis of the market value. In those cases where the suit is for an entire estate, or a defined share of an estate, or a part of an estate, assessed to land revenue as a unit, and the suit is for possession of the whole unit, the Court fee is to be charged on the value to be worked out on the basis of the multiple prescribed. On this reasoning, even when a suit is filed for a share of an estate not being any specified part thereof, the Court fee' payable Would be on the market value and not on the multiple to be worked out." 13. In the matter of Madhav Rao vs. State of Maharashtra, AIR 1972 SC 45 wherein the suit was filed for claiming property rights in a property which was known as Nava Gaon Tank measuring 310 acres of land and in the suit a declaration Was claimed that the plaintiff is still continued to be owner with a prayer of permanent injunction restraining the Govt. for interference with their rights. In alternative it was claimed that if the Govt. for interference with their rights. In alternative it was claimed that if the Govt. was found to be in possession then a decree of possession be granted. For the purpose of Court fee it was alleged that compensation of Rs.1126/- has been paid to the proprietor, the land had to be valued on the basis of that figure for the purpose of Court fee and jurisdiction for injunction Court fee of Rs. 30/- was paid. On behalf of State objection was raised before the trial Court that the value of tank could not be less than Rs. 10,00,000/- and Court fee of that amount should be paid. The trial Court held the value of the land was of Rs. 25,00,000/- and the plaintiff was directed to pay Court fee on that amount and the matter was remanded to trial Court for further inquiry into the matter. Against the order of remand in appeal the Hon'ble Apex Court observed that according to the view of the High Court fees is payable even with regard to the land on its value which according to the counsel for the State would be the market value. Hon'ble Apex Court further observed that where the subject-matter is land, the Court fees has to be calculated according to what has been provided in the sub-clauses (a) (b) and (c) with regard to different categories of land. It was also observed that the Court-fee is payable under section 6(i)(v) even with regard to land on its value which according to the counsel for the State would be the market value. It was observed by the Hon'ble Apex Court that in our judgment section 6(I)(v) does not admit of any such method of calculating the Court fee where the subject-matter is land. There is no doubt that where the subject-matter is a house or a garden, in a suit for possession the Court fee has to be paid according to the market value of the house or garden but where the subject-matter is land the Court fee has to be calculated according to what has been provided in the sub-clauses (a), (b), and (c) with regard to different categories of land. It may be that in Clause (v) the land which has not been assessed to land revenue is not covered by sub-clauses (a), (b) and (c) but then the Court fee will have to be calculated under some other provision of the Act but not on the basis of the value of the land. It was further observed that if there is any lacuna in the Bombay Act that will not justify the Court in straining the language of Clause (v) and reading it in such a way that if the land does not fall within sub-clauses (a), (b) and (c) mentioned therein it must be valued in the same way as a house or a garden and Court fee should be paid on that value. If, however, it is found that the land underneath the tank is assessed to land revenue then there is no difficulty and the Court fee has to be calculated in accordance with the provisions of sections 6(I)(v). But if the Court fees cannot be determined under that provision it will be for the trial Court to decide, under which provision Court fee is payable and the appellant shall be required to pay that amount of Court fee which is payable under the appropriate provision. 14. In the matter of Madhav Rao Sitaram Kohli vs. State of Maharashtra, AIR 1978 Bombay 344, wherein the Bombay High Court after the remand held that suit for possession of tank in a matter which was assessed to land revenue, Court fee paid on the basis of land revenue was correct. In earlier round the petition filed by the petitioner was dismissed by this Court vide order dated 14-5-2010 keeping in view the law laid down by the Full Bench of this Court in the matter of Balu Deochand Kulmi (supra) the order was recalled by this Court on the submission of the counsel for the petitioner that the provisions of the Court Fees Act has been amended. Learned counsel for the petitioners failed to point out the amended provision of the Court Fees Act. Similarly while laying down the law laid down in the matter of Narayan Vyankatrao (supra) the law laid down by this Court in the matter of Balu Deochand Kulmi (supra) was not taken into consideration. Learned counsel for the petitioners failed to point out the amended provision of the Court Fees Act. Similarly while laying down the law laid down in the matter of Narayan Vyankatrao (supra) the law laid down by this Court in the matter of Balu Deochand Kulmi (supra) was not taken into consideration. From the document filed by respondent/s this Court is of the view that the suit plot is situated in urban area and is being used as marriage garden. In view of this, the petition filed by the petitioners has no merits and the same stands dismissed. No order as to costs.