JUDGMENT N.N. Mithal, J. - This is an appeal by the plaintiff under Sec. 6-A of the Court Fee Act. Vide its order dated 17.11.79 the court below has directed the plaintiff to pay the court fee on the value of his alleged share in the property in dispute. Issues were framed by the court below on 12.9.79 wherein Issue No. 3 was struck on the question as to whether court fee paid by the plaintiff was insufficient This issue was not decided separately but on an application being moved by the defendant court considered this aspect and has disposed it of by the order under appeal. 2. It appears that the suit had been filed by the plaintiff for partition of his one half share out of the property detailed at the foot of the plaintiff in which the plaintiff claimed to be entitled to one half share. In para 11 of the plaintiff it is mentioned that the money for purchase of the property in the auction was provided by the plaintiff and by defendant equally and for that reason both the parties have one half share each. In para 13 of the plaint it is alleged that the defendant was paying the plaintiffs share of the rent until 1971 but thereafter he stopped doing so. The plaintiff, therefore, filed the present suit for partition of his one half share. 3. In para 20 of the plaint value of the suit has been given. According to the allegations made therein market value of the entire properly has been assessed at Rs. 35,520/- but the suit had been valued at its one half i.e. Rs. 17,760/- and the court Fee has been paid on the one fourth of the plaintiffs half share. It is this part which the defendant had objected to and it was contended that since the plaintiff, is out of possession he should pay the Court Fee of his entire share. The trial Court has accepted the stand of the defendant and has directed that the plaintiff should pay the court Fee for full value of his alleged share in the property in dispute. 4. Sri Ravi Kant appearing for the appellant, has relied upon a Division Bench decision of this Court in the case of Lakhan Singh v. Sultan Singh, AIR (38) 1951Alld. 4. Sri Ravi Kant appearing for the appellant, has relied upon a Division Bench decision of this Court in the case of Lakhan Singh v. Sultan Singh, AIR (38) 1951Alld. 571 Wherein it was held : "The word Possession in section 7 trial is not restricted to actual possession but includes constructive possession. Where a co-owner in actual possession of a portion of the joint property brings a suit for partition of his share, a presumption that he is constructive possession of the property of which he is not in actual possession arises and the plaintiff cannot be said to be out of possession unless even the constructive possession has been negatived by proof of ouster or denial of title anterior to the date of suit." 5. Even applying the principles underlying this case the plaintiff appellant here cannot be said to be in constructive possession of the property, As already noticed above, the plaintiff never claimed to be in actual possession of the property. In para 13 of the plaint what is asserted is that the plaintiff was in constructive possession but too ceased after 1971. Therefore, after 1971 and on the date of the suit the plaintiff cannot be said to be even in constructive possession of the property. Even though he may be a co-owner the court fee had to be paid of his share. In the circumstances the plaintiff was bound to pay Court fee on his alleged share in the property and not of one fourth thereof. The order of the court below does not appear to be against law. 6. In the circumstances, the appeal fails and is dismissed with costs, parties will appear before the court below on 7.3.1988. The office will see that the records is received before that date.