ORDER N. Varadaraja Iyengar, J. 1. This revision is by the defendant, against an interlocutory order of the court below, holding that the court fees paid on the plaint is sufficient. 2. The plaintiffs 1 and 2 are the children of the 1st defendant and her husband Moidu, not party. The plaint schedule property belonged to the plaintiffs' parents in equal halves. In or about 1952, they executed a mortgage of the whole property in favour of the 3rd defendant for a sum of Rs. 1,000 and took a lease back. Subsequently on 24-5-1952, Moidu gave his one-half right by way of gift in favour of the plaintiffs, then minors. This gift was however attacked in suit O. S. 645 of 1952 filed soon after, against the plaintiffs-minors represented by their mother and also their parents by Lonan who was a creditor of Moidu, as fraudulent and intended to defeat the creditors of the donor. The suit was decreed with costs against the plaintiffs, though still minors, on 29-10-1954 and this decree was later taken assignment of by the 2nd defendant on 13-6-1955. Pending this suit, the 1st defendant on 6-1-1953 sold the entire property to the 2nd defendant, acting for the purpose as guardian of the plaintiffs in respect of the half share in the property. The 2nd defendant subsequently, on 1-10-1953 passed on his title to the 3rd defendant, with the recitals in his own sale deed repeated, viz. for discharge of the 3rd defendant's mortgage and for payment of certain sum to the plaintiffs, from out of the sale consideration. The plaint avers that the sale by the 1st defendant in favour of the 2nd defendant and the sale following, by the 2nd defendant to the 3rd defendant, are void and ineffective so far as the plaintiffs' one-half right in the property is concerned and the plaintiffs are accordingly entitled to claim to be in constructive possession through their coowner, the 3rd defendant. The plaintiffs further claim to be entitled to partition and separate possession of their half share in the property "since the mortgage in favour of the 3rd defendant has been satisfied and no amount is payable to him", and of the profits due thereon from 6-1-1953, the date of the 2nd defendant's sale deed. The plaintiffs further claim to be entitled to partition and separate possession of their half share in the property "since the mortgage in favour of the 3rd defendant has been satisfied and no amount is payable to him", and of the profits due thereon from 6-1-1953, the date of the 2nd defendant's sale deed. The plaintiffs attack the decree in O. S. 645 of 1952 only to the extent of the costs decreed against them and express their willingness to be bound to pay the creditor Lonan as regards whom, the right in their favour by their father, had been declared void. This suit is therefore laid by the plaintiffs on 21-12-1956, for partition of their one-half share of the schedule properties, with mesne profits from 6-1-1953 and for declaration and injunction as regards the costs portion of the decree O. S. 645 of 1952. The plaintiffs valued the suit for the purpose of jurisdiction at Rs. 5,189 as. 6 made up of Rs. 4,800 being the market value of one-half share and mesne profits, and Rs. 389-6-0 costs under the decree. They paid court 'fees of Rs. 10/- under Sch. II, Cl. VIII(8) of the Travancore Cochin Court Fees Act, corresponding to Sch. II, Art. 17(vi), Indian Act, for partition relief and ad valorem for the declaration and injunction relief. 3. The 3rd defendant contested the suit on the basis that he was sole and exclusive owner of the properties and in possession and enjoyment as such. He denied that the plaintiffs were entitled to partition or separate possession or accounting in respect of the profits. He raised also the question as to the correctness of the levy of court fees for the plaint. It is the decision of this question as a preliminary matter, that has given rise to this Revision as abovesaid. 4. Learned counsel for the plaintiffs raised a preliminary objection that the revision did not lie since the order sought to be revised was one in relation to the sufficiency of court fees and in favour of the plaintiffs. Now the question whether the High Court can interfere in revision with an erroneous order as to court fees passed by the lower court has been the subject of several decisions by the High Courts. Now the question whether the High Court can interfere in revision with an erroneous order as to court fees passed by the lower court has been the subject of several decisions by the High Courts. There has been some differences of opinion on the subject but the preponderance of authority was in favour of recognising such power. Anyhow the question must now be taken to be settled by the decision of the Supreme Court in Nemi Chand v. Edward Mills Co. AIR 1953 SC 28 , that the finality declared by S.12 (section 9, Travancore - Cochin Court Fees Act) is limited only to the question of valuation pure and simple and does not relate to the category under which a certain suit falls. The learned Judge observed that "the finality declared by S. 12 of the Court Fees Act means that the parties cannot impugn such a decision by preferring an appeal but that it does not confer on such decisions a complete impunity from examination in a higher court. In other words, S. 12 when it says that such a decision shall be final between the parties only makes the decision of the Court on a question of Court fee non appealable and places it on the same footing as other interlocutory non appealable orders under the Code and it does no more than that." I therefore overrule the preliminary objection. 5. Taking up the merits of the revision petition. The court below in arriving at its decision in favour of the plaintiffs was guided mainly by the fact that as the plaint affirmed, the alienation by the 1st defendant, mother and guardian of the plaintiffs, of their half share, was void and of no effect under Mohammedan Law governing them. Their position was not also affected by the decree in O. S. 645 of 1952 obtained by Lonan, creditor of the father, because its effect was only to make the plaintiffs' share in their hands subservient to the decree and the plaintiffs had agreed to such result. The court was therefore, in its opinion, able to apply the normal rule that a suit by a cosharer for partition claiming to be in actual or constructive possession was only chargeable with the fixed court fee of Rs. 10 under Sen. The court was therefore, in its opinion, able to apply the normal rule that a suit by a cosharer for partition claiming to be in actual or constructive possession was only chargeable with the fixed court fee of Rs. 10 under Sen. II Art. 17(6) of the Indian Court Fees Act and this levy covered also the claim in the plaint for accounting as to the past profits. And as regards the declaration and injunction regarding costs in O. S. 645 of 1952 there was no question raised that court fees was not properly levied. Learned counsel for the 3rd defendant revision petitioner, did not for the present purpose question the voidness of the 1st defendant's alienation but he complained that the court below should not have taken the plaintiffs' assertion as to their constructive possession as conclusive in connection with their claim for partition. The court below should, according to him, have gathered from the whole plaint that the plaintiffs were out of possession altogether and were really and in terms, seeking to get possession through court, of their so-called half share. If so, S.3(5) of the Travancore-Cochin Court Fees Act corresponding to S.7(5) of the Indian Act should have been applied and ad-valorem court fees on the market value of the half share and the profits should have been charged. 6. Now the rule has become well settled that a suit for partition of property by a person who alleges that he is in possession of it as a cotenant oh behalf of himself and others is governed by Art. 17(6) of Sch. II of the Indian Act. See Gill v. Varadaraghavayya (1920) ILR 43 Mad. 306, Tara Chand v. Afzal Beg (1911) ILR 34 All. 184, Mohammad Sohail v. Ghulam Rasul ILR 1941 Lah. 308 = AIR 1941 Lah. 152 FB. The reason is as observed by Tek Chand, J., in the last of these cases, "the relief sought is the change in the mode of enjoyment of joint property of which the plaintiff ex-hypothesi, is in joint possession and it is not possible to estimate at money value the subject - matter in dispute." The question whether the plaintiff has been in joint possession or not should be determined for the purposes of court fee upon the allegations in the plaint and the mere denial of such joint possession by the defendant does not matter. The court, it has been held, need not in such cases embark on a preliminary enquiry whether the plaintiff did in fact, have joint possession. See Mohendra Chandra (1893) ILR 20 Cal. 762, Asa Ram v. Jagan Nath (1934) ILR 15 Lah. 531 = AIR 1934 Lah. 563. On this matter of disputed title, Mukerjee and Caspersz, JJ. said in Bidhata Rai v. Ram Chariter Rai, 12 CWN 37, 40, 41, "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 coowner is prima facie the possession of all the coowners, and his possession must be presumed to be in conformity with his right and title as coowner. 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." And as they pointed out the true distinction between the two classes of cases is as follows : "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 coowners'. 7. The question therefore in cases of this type is as observed in Manaji v. Sitaram, AIR 1924 Nag. 105. "Whether the plaintiff claims anything more than a change in the mode of enjoyment of the property by partition or in other words whether it is a part of his cause of action as disclosed in the plaint that the defendants have denied his right to partition or his right of joint possession or the nature of the property in the suit, involved either, in whole or in part." 8. So, if in a partition suit the plaintiff specifically claims the relief of possession, courts have always held that ad valorem court fee is payable. So, if in a partition suit the plaintiff specifically claims the relief of possession, courts have always held that ad valorem court fee is payable. It may be that the plaintiff may have been excluded from possession or the suit might be in respect of the properties in the possession of strangers who have been impleaded as parties to the suit for partition. Thus in Mt. Sat Bhawan v. Bedi Ram, ILR 1938 Lah. 240 = AIR 1938 Lah. 275, a person who was out of possession of his share in certain property sued for recovery of possession. The learned Judges held that the suit was a simple one for recovery of possession under S.7(5) of the Indian Court Fees Act and observed in the course of their judgment: "In our view if a person is out of possession of property to which he considers he is entitled on the strength of any right, title or interest that he claims in relation thereto and seeks to obtain possession thereof from the person who is keeping it back from him, there being no jointness of possession or title between the two, his suit is one for possession, bare and simple, to which the provisions of S. 7(v), Court Fees Act, apply and no occasion arises to invoke Art. 17(vi) of Sch. 2 Court Fees Act, in his favour." 9. In this case the plaintiffs did not claim to be in physical possession of any portion of the joint properties. Indeed such physical possession will be inconsistent with the averment that the possessory mortgage in favour of the 3rd defendant had been satisfied by virtue of the alienation by the 1st defendant and further with the claim for the plaintiffs' share of the profits for the past and future. The allegations in the plaint that the plaintiffs were in constructive possession through their cosharer the 3rd defendant, could not therefore alter the fact that the plaintiffs were really seeking ejectment in asking for partition. The allegations in the plaint that the plaintiffs were in constructive possession through their cosharer the 3rd defendant, could not therefore alter the fact that the plaintiffs were really seeking ejectment in asking for partition. They did not also disguise this fact when they prayed specifically for separate possession along with partition, "because the 3rd defendant was not inclined to accede to the plaintiffs' demand for separate possession." There can be no doubt therefore that the plaintiffs should pay court fees ad valorem in respect of their partition relief under S.3(5) of the Travancore-Cochin Court Fees Act, In the light of the above conclusion I have not deemed it necessary to discuss the large number of rulings cited on either side. 10. I therefore reverse the order of the court below and direct the levy of court fees from the plaintiffs in the light of the observations above. Their will however be no order for costs.