Ross, J.The facts of this ease are these. The plaintiff brought a suit for possession and mesne profits valuing the land at Rs. 775, and the mesne profits at Rs. 4,696 8-3. The suit was decreed for possession and it was directed that the amount of mesne profits should be ascertained. Against this decree an appeal was made to the High Court on which full Court-fee was paid. That appeal was dismissed. Then the mesne profits were ascertained to be Rs. 1,604-10-3. The defendant appealed against that decree to the District Judge and has preferred a second appeal to the High Court.

2. The Stamp Reporter is of opinion that the memorandum of appeal to the District Judge, which bore a Court-fee of 8 annas was under-stamped and should have been stamped with a Court-fee of Rs. 130. The question is whether that opinion is correct. The learned Counsel for the appellant contends that full Court-fee on the claim for mesne profits had already been paid and that he should not be required to pay again. He relies on the decision in Kanchan Mandar v. Kamala Prosad (1912) Cri.L.J. 564, where the facts were similar to the facts of the present case; and it was decided that the defendant could not be called upon to pay Court-fees a second time.

3. The learned Government Pleader refers to Section 6 of the Court-fees Act and contends that on this memorandum of appeal the proper Court-fee must be paid. But the question for decision is whether the Court-fee demandable has not in fact been paid already by the court-fee on the original memorandum of appeal; and it was that question which was decided in Kanchan Mandars case. The ground of the decision was that the Court-fee had been paid and that it should not be paid a second time. Section 6 therefore does not help towards a decision. The decision in 16 Cri.L.J. was sought to be distinguished on the ground that in that case the first appeal was still pending before the Court when the second appeal was filed, and that appears to have been adopted as a ground of distinction by the learned Taxing Judge in Mullik Mokhtar Ahmad v. Musammat Bibi Rahimunnisa Begum M.A. No. 62 of 1921, decided on 10th March 1921. Now that was not the ground on which the decision in 16 Crl.L.J. proceeded and when it is examined it does not appear to be a valid ground of distinction. Whether the two appeals are pending simultaneously or one has been disposed of before the second is filed, cannot in my opinion, make any difference. If, as has been suggested, the Court-fee is paid for the Courts time, then the time of the Court must be devoted to the question, whether the two oases are beard at the same time or one after the other. The amount of mesne profits is a separate question which must be separately dealt with, and it can make no difference whether the question of the amount of mesne profits is debated at the hearing of the main appeal or at a later date. The time of the Court must be devoted to it equally in either case. I am unable to find any valid ground of distinction between the facts of the present case and the facts in 16 Cri.L.J. The appellant has paid the Court-fee, and in fact more than the court fee, payable on the amount of the decree for mesne profits against which he appeals, and I can see no reason why he should be required to pay again. When he first appealed, the amount of mesne profits had not been ascertained but had only been ordered to be ascertained. The fee was paid on the amount at which the plaintiff estimated the mesne profits. This turns out to be muck more than the mesne profits actually awarded. Therefore the appellant has really paid more than (she decree that has now been made against him would have necessitated.

4. There is a further reason against requiring the appellant to pay an additional Court-fee on the memorandum of appeal, before the District Judge. That appeal was incompetent. The District Judge had no jurisdiction; the appeally to the High Court. The memorandum of appeal ought to have been returned to the appellant by the District Judge, and if ha had done so, the appellant would have been able to file the appeal here on the same Court-fee. In my opinion, therefore, no further Court-fee should be required from the appellant.

5. The appellant ia entitled to the coats of this hearing: hearing fee two gold mohurs.

Das, J.

6. I agree,