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2004 DIGILAW 384 (AP)

Jaswanth Kour v. Rajan Bai

2004-03-26

ELIPE DHARMA RAO

body2004
ELIPE DHARMA RAO, J. ( 1 ) THIS Civil Revision Petition is filed under section 115 of the Code of Civil Procedure. The petitioners herein are the plaintiffs, who seek to assail the orders in OSSR. No. 3492 of 2003 dated 22-12-2003 on the file of the court of District Judge, Karimnagar District, rejecting the plaint filed under Section 26 of the Code of Civil Procedure read with order 7, Rule 1 of Code of Civil Procedure, seeking for partition of the plaint schedule properties in three equal parts and allotment of one such share to each of them and delivery of possession of one such share to the plaintiffs; recovery of an amount of rs. 40,000-00 from the defendants towards their share of rents on house from the plaint schedule property for one year (i. e. , from 1-11-2002 to 31-10-2003) and directing them to pay court fee under Section 34 (1) of a. P. Court Fees and Suits Valuation Act, 1956 on the ground that the suit is filed for partition and one-third share in the suit schedule property i. e. , item Nos. 1 and 2 of the suit schedule property they are not in possession of the joint family properties. ( 2 ) THE learned counsel for the Revision petitioners contended that the petitioners have made categorical pleadings that they are in joint possession of the suit schedule properties, and as such, the valuation of the court fee under Section 34 (2) of Andhra pradesh Court Fees and Suits Valuation Act is correct. The court below ought to have seen that while registering the suit, the court below has not looked into the basic pleadings in the plaint and cannot draw its own inference. The court below has committed illegality in returning the plaint and directing to pay the court fee under section 34 (1) of A. P. Court Fees and Suits valuation Act, 1956. ( 3 ) IN support of his contention, the learned counsel for the petitioners relied on a decision of this court in R. V. Bhuvaneswari and others v. Ponnuboina Chenchu ramaiah (died) andothers. ( 4 ) IN R. V. Bhuvaneswari s case, the plaintiffs therein filed the suit for partition of the plaint schedule joint family properties and to allot the shares for which they are entitled by passing a preliminary decree. ( 4 ) IN R. V. Bhuvaneswari s case, the plaintiffs therein filed the suit for partition of the plaint schedule joint family properties and to allot the shares for which they are entitled by passing a preliminary decree. After numbering the suit, the Office of the senior Civil Judge, Kavali put up a check slip stating that the said suit is for partition of plaint schedule properties and for allotment of shares of plaintiffs 1 and 2 and defendants and also for permanent injunction restraining defendants 1 to 4 and 7 from making any attempts to raise constructions over any portion of the plaint schedule property. As per the averment in the plaint, defendants 1 to 4 sold some of the plaint schedule properties to Defendant No. 7. Therefore, the plaintiffs are not entitled to joint possession and enjoyment of such portion of the schedule property and thus the plaintiffs are liable to pay Court fee under Section 34 (1) of A. P. Court Fees and Suits Valuation Act, 1956. On the office check slip, the learned senior Civil Judge, Kavali, made an order to pay the deficit Court fee by 21-11-2002. Questioning the said order Civil Revision petition is filed. While disposing of the said revi "on, this court held that under sec. 34 (1) of the Act, in a suit for partition, where the plaintiffs are not in possession of any such property of the joint family, the court fee shall be computed on the market value of the property or 3/4ths of the market value of immovable property, excluded in the plaintiff s share. On that analogy, the Court below directed the plaintiffs to pay the court fee under Section 34 (1) of the Act. It is specifically asserted by the plaintiffs that they have not been excluded from the possession of the property sold in favour of the 7th defendant but they are very much in possession of the same. Therefore, sec. 34 (1) has no application. Whereas under Section 34 (2) of the Act, in a suit for partition where the plaintiffs are seeking partition of suit and separate possession of the joint family properties, and if the plaintiffs are in joint possession of the property the court fee payable in respect of the suit for partition, where the value is over and above rs. 10,000-00 is only Rs. 200/ -. 10,000-00 is only Rs. 200/ -. In the instant case, the plaintiffs have asserted that they are in joint possession of the properties sold by the defendants 1 to 4 in favour of the defendant No. 7. Therefore, the court fee payable by them is only Rs. 200. 00 which was already paid. However, even if there is any dispute as regards to joint possession, the office of the Court cannot decide whether they are in possession or not, but it is a matter to be decided after trial of the suit only. Therefore, the court below is not right in directing the plaintiffs to pay the court fee under Section 34 (1) of the Act. Accordingly, the order of the court below is set aside and the CRP is allowed. ( 5 ) IN the present case the second respondent filed counter on his behalf and on behalf of Respondents 1 and 3. It is submitted in the counter that the averments made in plaint are very clear to the effect that the petitioners and his father were in joint possession of the properties till the marriage of each party. Hence, this averment alone is sufficient to hold that the petitioners are out of possession of the suit properties. Hence, the orders under revision are perfectly valid, justified and unassailable. Even on merits also, the petitioners have no right over the suit schedule properties. Further his father alone is the son of their grandfather and he succeeded to the properties of grandfather after the death of his grandfather. The concerned authorities after taking into consideration all these facts have made mutations in their names after the death of his father. As such, the petitioners cannot make any grievance on this point also. He further submitted that the petitioners have no right on item No. 3 also as they are not in possession of the same in any view of the matter. Hence, the petitioners have to pay court fee on item No. 3 also as per Sec. 34 (1) of the A. P. Court Fees and Suits Valuation act but not under Section 34 (2) of the Act. The petitioners who are fully aware of the fact that they have no right over the suit schedule properties kept quiet for all these years and filed the suit with false and frivolous allegations. The petitioners who are fully aware of the fact that they have no right over the suit schedule properties kept quiet for all these years and filed the suit with false and frivolous allegations. Hence, the Revision is liable to be dismissed. ( 6 ) HEARD the learned counsel on either side. ( 7 ) BEFORE parting with the Revision, let us examine Section 34 (1) and (2) of A. P. Court fees and Suits Valuation Act, 1956. When the plaint is presented to- (i) a District Munsif Court (ii) a Subordinate Judge s court or a District Court. ( 8 ) ON consideration of the facts and circumstances of the case and the decision relied on by the learned counsel for the revision Petitioner, it appears that the learned single Judge of this Court in the decision stated supra-1 at para 11 of the plaint therein asserted that all the co-sharers are in joint possession of the property. Therefore, in a partition suit they are entitled to pay court fee under Section 34 (1) of A. P. Court Fees and Suits Valuation Act, 1956. As can be seen at para 4 of the pleadings, it is asserted by the plaintiffs 1 and 2 that they are in joint possession of the suit property till their marriages. Though, the date of marriages of the plaintiffs is not given but it can be understood that upto their marriages they were in joint possession of the suit schedule property and after their marriages, they are not in joint possession of the suit property but they are entitled for share as co- sharer of the joint family properties. Section 34 of A. P. Court Fees and suits Valuation Act, 1956. Partition suits: (1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the movable property or three fourths of the market value of the immovable property, included in the plaintiff s share. Section 34 (2) of the A. P. Court Fees and Suit Valuation Act, 1956: In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property fee shall be paid at the following rates:- rupees fifty rupees one hundred if the value of plaintiff s share is less than Rs. 10,000-00. Rupees two hundred if the value is not less than Rs. 10,000-00. ( 9 ) CONSIDERING the facts and circumstances, Prima facie, I am satisfied that the learned District Judge is absolutely right in returning the plaint and ordering to pay court fee under Section 34 (1) of A. P. Court Fees and Suits Valuation Act, 1956. In the circumstances, the decision stated supra-1, is not applicable to the facts of the present case on hand, vis-a-vis, the petitioners in this Revision Petition are not in possession of the suit schedule item Nos. 1 and 2 after their marriages. ( 10 ) FOR the reasons mentioned hereinabove, I am in full agreement with the conclusion arrived by the learned District judge, directing the petitioners to pay court fee under Section 34 (1) of A. P. Court Fees and Suits Valuation Act, 1956. 1 do not find any valid and bona fide reason to interfere with the order impugned in this Revision. The CRP invariably deserves to be dismissed in limini. ( 11 ) IN the result, the CRP is accordingly dismissed. No order as to costs.