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2007 DIGILAW 853 (AP)

S. GAFFAR SAHEB v. S. HUSSAIN BEE @ S. MUSTARI

2007-09-07

A.GOPAL REDDY

body2007
( 1 ) THIS revision petition is filed under Art. 227 of the Constitution of India by the plaintiff questioning the order passed by the ii Additional District Judge, Madanapalle dt. 20-9-2006 in CFR No. 8349/2006 returning the plaint directing the plaintiff to pay court-fee under Sec. 34 (1) of A. P. Court Fees and suits Valuation Act, 1956 (for short "the Act")by granting one month time. ( 2 ) THE plaint averments would go to show that Abdul Razak and his wife Fathima Bee had only one daughter, Hussain Bee, who is the wife of the plaintiff. The first defendant is the husband (sic. wife) of the plaintiff. They are blessed with one son, Kareemullah. The first defendant along with her son Kareemullah were living at Madanapalle separately due to instigation of the second defendant. During the life time Shaik Abdul Razak and his wife fathima Bee, the maternal grand parents of kareemullah, gifted the plaint schedule properties to Kareemullah. Thus, he became the absolute owner of the plaint schedule properties and was in possession and enjoyment of the same. Kareemullah filed o. S. No. 155/91 on the file of District Munsif, madanapalle for grant of permanent injunction against his maternal grand father Shaik Abdul razack due to some misunderstandings and the said suit was decreed. By virtue of decree obtained and by virtue of gift, Kareemullah became the absolute owner of the suit property and was in possession and enjoyment of the plaint schedule properties. While so, Kareemullah who is working as taxi driver met with a road accident on 10-12-1995 and died on the spot. After demise of Kareemullah, the first defendant i. e. , the mother of the Kareemullah is entitled to 1/6lh share and the petitioner is entitled to 5/6lh share in all the properties of Kareemullah including the plaint schedule properties. The second defendant taking innocence of kareemullah, and to knock away the properties, fraudulently obtained a registered power of attorney from him on the pretext that he would help him to get a loan for purchase of taxi. The second defendant taking innocence of kareemullah, and to knock away the properties, fraudulently obtained a registered power of attorney from him on the pretext that he would help him to get a loan for purchase of taxi. After obtaining GPA, the second defendant seems to have alienated some of the properties to defendants 3 to 24 without the knowledge and consent of kareemullah and even after the death of kareemullah certain properties were alienated under the guise of said GPA, therefore, the plaintiff filed the above suit for partition and separate possession alleging that he and the first defendant were joint in possession of the property and so court fee of Rs. 200/-under Sec. 34 (2) of the Act is paid. ( 3 ) THE trial Court by a detailed order held that the averments of the plaint would go to show that the plaintiff was never in joint possession with Kareemullah or even at any point of time and he has not at all furnished any details as to how he came into joint possession of the property, therefore, he has to value the suit under Sec. 34 (1) of the Act and pay court fee thereon and while holding so returned the plaint. ( 4 ) LEARNED counsel for the plaintiff strenuously contends that on the death of kareemullah, the plaintiff and the defendant no. 1 are deemed to be in joint possession of the property held by Kareemullah and hence they are entitled to seek partition of the properties. In support of his contentions, he placed reliance on the judgments reported in k. Venkata Rangadass v. K. Venkata Krishna rao1; Mirza Raheem Baig v. Mirza mahamood Baig and others 2 and a. Divakrupamani and another v. A. Sakuntala devi and others3, and tried to distinguish the judgment referred by the trial court in its judgment, namely, Jaswanth Kour v. Rajan bai4. ( 5 ) IT is fairly well settled that question of court fee must be considered in the light of allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on the merits. ( 5 ) IT is fairly well settled that question of court fee must be considered in the light of allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on the merits. ( 6 ) A reading of the plaint allegations categorically goes to show that Kareemullah was in possession of the property pursuant to the gift deed executed in his favour and by virtue of decree of permanent injunction obtained by him against the donar, i. e. , his maternal grand father. It further shows that during the lift time of Kareemullah he gave general power of attorney in favour of D-2. D-2 has never accounted for the income received from the properties as per the general power of attorney, but fraudulently after obtaining GPA alienated some of the properties in plaint "a" schedule to defendants 3 to 24 without the knowledge and consent of kareemullah, and retained the sa1 le proceeds with him. This allegation in the plaint goes to 1. AIR 1982 A. P. 60. 2. 2004 (2) ALD 117 . 3. 2000 (2) ALT 275 = 2000 (2) ALD 754 (D. B. ). 4. 2004 (4) ALT 541 . show that during the life time of Kareemullah itself D-2 sold away certain properties to third parties who are impleaded as defendants 3 to 24, which falsifies the claim of the plaintiff that he is in joint possession of the plaint schedule properties either with Kareemullah or with the first defendant. In paragraph 6, it is averred that alienations made by the second defendant in favour of defendants 3 to 24 are invalid and inoperative and not binding on the plaintiff to the extent of his legitimate 5/6th share in the property. The first defendant is totally under the thumb and control of the second defendant and has become almost a puppet in his hand and trying to alienate the suit property by surpassing the rights of the plaintiff, therefore, the plaintiff is entitled to 5/6lh share in plaint "a" and "b" schedule properties. The allegations cumulatively would go to show that Kareemullah was in possession of the property who was living separately at mandanaplli. The allegations cumulatively would go to show that Kareemullah was in possession of the property who was living separately at mandanaplli. When the plaintiff was not in joint possession at any time either with kareemullah or after the death of Kareemullah with defendant No. 1, and some of the properties were alienated during the life time of Kareemullah itself, the suit has to be valued under Sec. 34 (1) but not under sec. 34 (2) of the Act. ( 7 ) THE impugned order passed by the trial court returning the plaint does not suffer from any illegality warranting interference by this court. ( 8 ) THE Civil Revision Petition fails and it is accordingly dismissed. No costs. .