JUDGMENT 1. On the 31st March 1905, the Plaintiff commenced the action out of which the present appeal arises, for partition of properties moveable and immoveable, which he alleged, were jointly owned and possessed by a joint Hindu family of which he and the Defendants were the members. A Court-fee of Rs. 10 was paid upon the plaint and the suit was instituted in the Court of the Subordinate Judge of Shahabad. It was subsequently transferred by the District Judge to his own file and some evidence was taken by him, but again it was retransferred to the file of the Subordinate Judge, before whom the remainder of the evidence was adduced by the parties without any objection. After the close of the case, however, the Defendants objected that the District Judge had no power to retransfer the case to the Subordinate Judge, and that the latter, consequently, had no jurisdiction to hear it. The Subordinate Judge overruled this objection, and made the usual preliminary decree for partition. The Defendants then appealed to this Court, and repeated their objection as to jurisdiction. This objection was allowed to prevail [Ramcharittar Ray v. Bidhata Ray 10 C. W. N. 902 (1906)]. The decree of the Subordinate Judge was set aside and the case was sent back to the District Judge for trial. Before the District Judge two new issues were framed at the instance of the Defendants, namely, first: Is the Court-fee paid by the Plaintiff sufficient 1 and secondly, Is Plaintiff in possession of the properties in suit-, if not, is the claim for partition tenable 1 Subsequently, the parties agreed that the evidence taken by the Subordinate Judge should be received, as if it had been adduced at the hearing before the District Judge. Some additional evidence also was adduced. The learned District Judge then held that only a small part of the property in suit was admittedly joint property; that the remainder was denied to be joint property and that there was no proof, that the Plaintiff was in possession of the whole of the disputed properties. In this view of the matter, he held, that partition could be decreed only In respect of the undisputed properties; that In respect of the disputed properties, the Plaintiff must ask for declaration of title, recovery of possession and partition, and that consequently, ad valorem Court-fees must be paid on the plaint. In this view of the matter, he held, that partition could be decreed only In respect of the undisputed properties; that In respect of the disputed properties, the Plaintiff must ask for declaration of title, recovery of possession and partition, and that consequently, ad valorem Court-fees must be paid on the plaint. The Plaintiff was then called upon to pay additional Court-fees, and to pay fees for the appointment of a Commissioner. Upon his failure to do so within the time specified the suit was dismissed with costs. The Plaintiff has now appealed to this Court, and on his behalf, the decision of the District Judge has been challenged on two grounds, namely, first that adequate Court-fees were paid on the plaint, and Secondly, that If the Court-fees were inadequate, the question ought not to have been allowed to be raised at that late stage of the litigation 2. In support of the first contention reliance was placed by the learned vakil for the Appellant upon the cases of Ragendra Loll v. Shama Churn 4 C. L. R. 417 (1879), Kirty Churn v. Aunath Nath I. L. R. 8 Cal. 757 (1882) and Mohendra Chandra v. Ashutcsh I. L. R. 20 Cal. 762(1893. These cases are founded [on the principle, that a suit for partition of joint property is not a suit for recovery of possession and is governed, not by sec 7, sub-sec. (iv), cl. (b) nor by sec. 7, sub-sec. (v) of the Court Fees Act, but by Art. 17, cl. (iii) or cl. (vi) of Sch. II of that Act. 3. The learned vakil for the Respondents on the other hand contended, that a suit for partition 1b In substance, a suit to enforce the right to share In any property, on the ground that It is joint family property, which is governed by sec 7, sub-sec (iv), cl. (b). In support of this view, he relied upon the case of Reference under the Court Feet Act 4 M. L.J. R. 110. 4. It may be conceded, that if the matter were res Integra, there might be room for considerable discussion. (b). In support of this view, he relied upon the case of Reference under the Court Feet Act 4 M. L.J. R. 110. 4. It may be conceded, that if the matter were res Integra, there might be room for considerable discussion. But after a careful examination of the arguments addressed to us on both sides, we are not prepared to dissent from the rule embodied in the oases cited on behalf of the Appellant; nor are we prepared to disturb what has been the uniform practice of our Courts ever since the Court Fees Act of 1870 was passed. As observed by the learned Judges who decided the case of Ragendra Loll v. Shama Churn 4 C L.B. 417 (1879) the effect of a suit for partition is not recovery of possession, but to alter the form of enjoyment of joint property by the co-owner. Strictly speaking, the value of such a suit is the value of the convenience of the change of the form of enjoyment, if indeed such relief is capable of any valuation. A similar view was taken by Sir Richard Garth in Kirty Churn v. Aunath Nath I. L. R. 8 Cal. 757 (1882), where the learned Chief Justice stated that a co-owner, who is already In possession of his share, obtains, by partition, a divided instead of an undivided share; it is Impossible for a Plaintiff to put a market value upon this change in the nature of his property. The view thus indicated was adopted by Petheram, C. J., and Norria, J,, In Mohendra chandra v. Ashutosh I. L. R. 20 Cal. 762 (1698). 5. In that case, as here, there was a dispute between the parties as to what constituted the joint family properties. The title of the Plaintiff to share in many of the properties included in the plaint was denied by the Defendants. It was ruled, that the suit was maintainable upon payment of a Court-fee of ten rupees and it was pointed out, that for the purposes of the stamp duty, the cause of action alleged in the plaint and that alone must be looked at. It was ruled, that the suit was maintainable upon payment of a Court-fee of ten rupees and it was pointed out, that for the purposes of the stamp duty, the cause of action alleged in the plaint and that alone must be looked at. If the only relief sought is the partition of property, which the Plaintiff says is family property, and of which he says, he is in possession jointly with others, because the possession of one member is the possession of all, the suit is for partition, and the plaint has to be stamped, as in a partition suit. 6. This view appears to us to be based upon a reasonable construction of the provisions of the Court Fees Act. The contrary view maintained by the learned Judges of the Madras High Court in Reference under the Court Fees Act 4 M. L. J. R. 110 does not appear to us to be founded on principle or supported by the language of sec. 7, sub-sec. (iv), cl. (b) of the Court Fees Act which is applicable to a suit to enforce the right to share in any property on the ground that it is joint family property. This clause seems to refer to a suit for joint possession and not to a suit for partition. Nor are we prepared to accept the construction placed upon that provision In Velu v. Kumara Velu I L. R. 20 Mad. 289 (1896). Besides, if reliance is placed upon sec 7, sub-sec. (iv), cl. (b), the difficulty is not removed, because partition may be claimed of joint property which is not necessarily joint family property. On these grounds, we must hold that a suit for partition of joint property is governed by Sob. II, Art. 17, cl. (iv) of the Court Fees Act, and the plaint is properly stamped, if a Court-fee of ten rupees is paid upon It. 7. The question next arises, whether this rule Is affected if the Defendant raises any question of title. Such a question may be raised in one of two ways; the Defendant may deny, that some of the properties in respect of which partition Is claimed are joint properties, or the Defendant may question the extent of the share of the Plaintiff in some or all of the properties. Such a question may be raised in one of two ways; the Defendant may deny, that some of the properties in respect of which partition Is claimed are joint properties, or the Defendant may question the extent of the share of the Plaintiff in some or all of the properties. If a question of title is raised, it is not denied that the Court is competent to adjudicate upon it, but it is contended on behalf of the Respondents, that this alters the nature of the suit, that the effect of the denial is to convert the suit into one for declaration of title and recovery of possession and that, consequently, Court-fees must be paid ad valorem on the plaint. The argument in substance is that the scope of the suit is to be determined not upon the plaint but upon what may be the eventual allegations of the Defendant, with the result, that a dispute as to title raised not bond fide but merely as a sham, intended to delay and embarrass the Plaintiff, converts the suit into one for declaration of title and recovery of possession. In our opinion, there is no substance in this contention. The Plaintiff is entitled to maintain a suit for partition, if his possession to some part of the joint property is admitted or established. It is essential, that he should be in actual or constructive possession of the properties, and whether he has such possession or not, is to be determined in view of the principle, that the possession of one co-owner is prim facie the possession of all the co-owners, and his possession must be presumed to be in conformity with his right and title as co-owner. If it is established, that he is not in possession at all of any portion of the joint property, that there has been a complete ouster, he must sue for recovery of possession and partition and pay ad valorem Court-fees upon a plaint appropriately framed for the purpose. This follows from the principle, that partition signifies the transformation of joint possession into separate possession. This follows from the principle, that partition signifies the transformation of joint possession into separate possession. If, however, the possession of the Plaintiff is admitted or established over what forms part of the joint-estate, the suit does not cease to be one for partition, merely because the Defendant denies the title of the Plaintiff to a share of the estate or to specific lauds of the estate and asserts a hostile title and adverse possession therein. 8. The true distinction between the two classes of cases is that, in the one class, the Plaintiff really prays for ejectment, in the other he claims a division of lands, of part of which he is In actual occupation and over the remainder of which he is in constructive possession through his co-owners. This distinction is amply borne out by the oases of Bolton v. Bolton L. R. 7 Eq. 298 note (1868), Slade v. Barlow L. R. 7 Eq. 296 (1869), Potter v. Waller 2 Deg. & Sm. 410 (1848), Giffard v. Williams L. R. 5 Ch. App. 646 (1870) and is identical with that taken in the oases of Balvant v. Nana I. L. R. 18 Bom. 209 (1898) and Waliullah v. Durga Prasad I. L. R. 28 All. 340 (1906). No doubt, the difference between the jurisdictions of Courts of common law and Courts of Equity in England does not obtain in this country, by reason of which a party out of possession cannot ordinarily get a disputed question of legal title litigated in a Court of Equity. But there is no foundation for the contention, that mere denial of the title of the Plaintiff converts a suit for partition into a suit for possession. If the contrary view were maintained, it would obviously lead to endless confusion. There might be numerous Defendants in a suit for partition and they might not all be agreed as to the title and possession of the Plaintiff. The Court in this view would have to hold a preliminary investigation of the properties as to which the title of the Plaintiff was admitted or established. The Court would also have to determine the properties of which the Plaintiff was in possession; and if the Plaintiff was called upon to pay ad valorem Court-fees upon the other properties, a determination of their value might not improbably become necessary. The Court would also have to determine the properties of which the Plaintiff was in possession; and if the Plaintiff was called upon to pay ad valorem Court-fees upon the other properties, a determination of their value might not improbably become necessary. In this way, the majority of the questions in controversy between the parties would have to be tried out before the Court could determine the preliminary question, whether adequate Court-fees had been paid upon the plaint. Upon reason and principle, therefore, we are not prepared to dissent from the view taken in the case of Mohendra v. Athutosh I. L. R 20 Cal. 762(1893). The fundamental rule is that partition is not a substitute for ejectment, because partition implies an existing joint possession and enjoyment, to be converted into possession in severalty, [Claph v. Bromagham 9 Cowen. 530, Florence v. Hopkins 1 Sickels. 182]. When, therefore, the Plaintiff has possession of what is a portion of the joint estate a denial of the extent of that estate or of the quantum Plaintiff's interest therein, does not convert the suit into one for recovery of possession of land. 9. If these principles are applied to the case before us, what Is the position of the parties. The Plaintiff is admittedly in possession of what is joint property; that he is a coparcener with the Defendants is conceded but it is denied that all the properties alleged by him to be joint properties have really that character. In our opinion, the suit as framed is one for partition, and the plaint was correctly stamped. 10. It may be observed that the interpretation to which we adhere is consistent with what has been the practice of our Courts for a long series of years. To adapt to this case the language employed by Sir Richard Garth in Kishori Lal Roy v. Sharat Chandra Mozumdar I. L. R. 8 Cal. 593 (1882), where a somewhat similar question was raised, suits for partition are of constant occurrence the Government must have been well aware of the construction which has been put by the Courts upon the Court Fees Act, and if, being aware of it, they have desisted all this time, from any legislative action to change the practice, that seems a strong reason for believing that they considered the practice to be in accordance with the intentions of the Legislature. This principle is specially applicable, where the subject of interpretation is a matter of every day occurrence. When we find, that for thirty years, if not longer, a law which imposes a heavy tax upon litigation has received a particular interpretation in favour of the suitor, and a course of practice has prevailed for years in accordance with that interpretation, any Court of Justice ought to be very slow to change that interpretation or course of practice to the prejudice of the suitor, unless it sees clear and weighty reasons to the contrary. To such a case, the maxim fittingly applies, optima enimist legis interpres con-suetuudo, or in the words of Lord Coke, that exposition shall be preferred which is "approved by constant and continual use and experience" [See the observation of Lord Brougham in Dunber v. Roxburghe 8 Cl. & F. 335 at pl. 354 (1835)]. The first contention urged on behalf of the Appellant must consequently prevail. 11. In view of the opinion we have expressed on the first question it is not necessary to consider the second point taken on behalf of the Appellant, namely, that the Court below had no jurisdiction after remand to raiee a question as to the deficiency of Court-fees paid on the plaint. There has been some divergence of judicial utterance as to the stage up to which an objection as to the deficiency of Court-fees may be taken. It was held by the learned Judges of the Madras High Court in Valambalammal v. Vythilinga ILR 24 Mad. 331 (1900) : I. L. R. 25 Mad. 380 (1900), that where In a second appeal, it is discovered that by mistake insufficient Court-fees had been paid, on the plaint and on the memorandum of appeal in the lower Courts, it is competent for the High Court to direct payment of such deficiency within a time to be fixed. The contrary view appears to have been taken by the learned Judges of the Allahabad High Court in Wilayat Ali v. Umar Daraz Ali I. L. R. 19 All. 165 (1896) while in Mahadei v. Ram Kishen Das I. L. R. 7 All. 582 (1885), the Court was equally divided in opinion upon this point. The contrary view appears to have been taken by the learned Judges of the Allahabad High Court in Wilayat Ali v. Umar Daraz Ali I. L. R. 19 All. 165 (1896) while in Mahadei v. Ram Kishen Das I. L. R. 7 All. 582 (1885), the Court was equally divided in opinion upon this point. Apart from the general question, however, of the effect of sec 28 of the Court Fees Act, we are satisfied from the proceedings in the present suit, that when the order of remand was made by this Court on the last occasion, it was not the intention, that the Defendants should be at liberty to raise in bar a plea of this description. No doubt an objection as to the insufficiency of Court-fees had been taken in the written statement of the Defendants, but no issue was directed to the question, and the objection was apparently not even mentioned during the trial. The Subordinate Judge gave the Plaintiff a decree on the merits. The Defendants appealed to this Court and paid a Court-fees of ten rupees only on their memorandum of appeal. No objection was then taken that the Court-fees paid on the plaint was insufficient; indeed such objection, if valid, could not have been entertained unless and until those Appellants had paid additional Court-fees on their own memorandum. In these circumstances, when this Court made an order for retrial of the suit, it would be unreasonable to hold that it was intended to leave open such a point with respect to which a new issue had to be raised. In our opinion, the learned District Judge ought not to have raised this point after remand at the instance of the Defendants. 12. The result, therefore, is that this appeal must be allowed, and the decree of dismissal made by the District Judge reversed. The case is remanded to him, in order that he may hear the arguments of both sides upon the whole evidence on the record as it stands (inclusive of the materials which were before the Subordinate Judge at the first trial) and then decide the case on the merits. As regards the costs of this appeal, there can be no manner of doubt, that the Appellant has been harassed by the Defendants by every possible objection of an unsubstantial character. The Appellant will, therefore, have the costs of this appeal. As regards the costs of this appeal, there can be no manner of doubt, that the Appellant has been harassed by the Defendants by every possible objection of an unsubstantial character. The Appellant will, therefore, have the costs of this appeal. He will also have five gold mohurs as costs of the hearing before the District Judge on the 19th March 1907. The order made by this Court on the last occasion, as regards the costs antecedent to the remand will stand. Under sec 13 of the Court Fees Act, the Appellant will be granted a certificate for refund of the Court-fees paid on the memorandum of appeal to this Court,