ORDER 1. Being aggrieved by the order dated 27 .9.10 passed by Civil Judge, Class-II, Dhar in Civil Suit No. 38-A/10 whereby the application filed by respondent Nos. 1,3,4 & 5 under order VII Rule 11 CPC was allowed and the petitioner was directed to pay the requisite court fee, present petition has been filed. 2. Short facts of the case are that the petitioner filed a suit for declaration, partition, possession and mesne profit alleging that the respondent No.3 is the mother of petitioner, while respondents No.1 & 2 and 4 & 5 are the brothers and sisters respectively. It was alleged that the land bearing survey Nos. 113/1, 113/2, 113/2/1, 113/2/2, 113/2/3, 173, 210/1, 256/1, 401, 402/1, 403/2, 404, 419/1 and 419/3 are the land which came into the share of Hiralal in partition, of which the land revenue is Rs. 81.80, in which petitioner is having 1/6th share. It was alleged that for the purpose of court fee, the suit is valued on the basis of which 1/6th of the land revenue of Rs. 81.80 multiplied by 20 i.e. 272.06 of which the court fee of Rs. 100/- is paid. Upon notice an application was filed by the respondents No.1, 3, 4 & 5 wherein it was alleged that the suit has not properly been valued and the court fee is not accordingly paid, hence the suit be dismissed. After hearing the parties application was allowed, against which present petition has been filed. 3. Learned counsel for the petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that the petition filed by the petitioner be allowed and the impugned order be set aside. 4. 3. Learned counsel for the petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that the petition filed by the petitioner be allowed and the impugned order be set aside. 4. For the purpose of court fee relevant provisions are section 7 (v) and section 7 (vi-a) of Court Fees Act which are as under :- Section 7 (v) -- for possession of lands, houses and gardens -- in suits for possession of lands, houses and gardens, according to the value of the subject matter; and such value shall be deemed to be n where subject matter is land and (a) such land is assessed to land revenue or land revenue is payable in respect of such land-twenty times the land revenue so assessed or so payable; (b) such land forms a part of land which is assessed to land revenue or in respect of which land revenue is payable twenty times of the land revenue proportionately worked out for such part of land; (c) such land is not assessed to land revenue-twenty times of the land revenue worked out at the rate of [five rupees] per acre; Section 7 (vi-a) in suits for partition - (a) according to one half of the value of the plaintiffs share of the property; and (b) according to the full value of such share if on the date of presenting the plaint the plaintiff is out of possession of the property of which he claims to be a co-parcener or co-owner and his claim to be a co-parcener or co-owner on such date is denied. 5. In the matter of Gujabai v. Salubai. AIR (34) 1947 Nagpur 243 it has been held that where in a suit the plaintiff, who is a co-owner whose right as a co-owner is challenged and who is excluded from possession, claims possession of his share of the property as a co-owner and wants his share to be partitioned off, though partition is claimed, it can still be regarded as a suit in ejectment and, therefore, is primiarily a suit which falls under section 7 (v). In the matter of Ganesha v. Radhelal, 1972 MPLJ Short Note-78 wherein in a suit for partition, possession and mesne profits in respect of lands of the defendants joint family, the Plaintiffs claim was decreed and the appeal preferred by the defendants was dismissed inter alia on the ground that court fee ought to have been paid on the market value, this Court held that defendants had paid court fee on the basis of 20 times the land revenue. It was further held that since the decree did not in terms direct delivery of possession of a portion of a Khasra number, but it directed demarcation of 1/4th share of the plaintiff, therefore court fee was payable only on the basis of 20 times the land revenue and not on the market value. In the matter of Ramkali Bai v. Babu Ram, 1975 MPLJ Short Note-28 wherein plaintiff suing for joint possession of agricultural land and defendants pleading construction of a petrol pump and development of a garden, this Court held that no court fees need be paid on the market value of the structures or the garden. In the matter of Ambaram v. Narbad, 1976 JLJ SN 2 wherein the suit is for definite share of land, this Court held that in case where plaintiff is not claiming any particular piece of land but a definite share 1/4th or 1/3rd, in that case the value is to be determined on the land revenue paid and not on the basis of market value. In the matter of Rehmatulla Khan v. Aziz Khan, 1980 JLJ Short Note-36 wherein lower Court held that suit being for cancellation of will, must pay the court-fees accordingly, this Court held that suit of the plaintiff was that his share be declared 1/12th and be put in possession, hence section 7 (iv) (c) attracted and plaintiff can sue for possession without asking for a declaration and cancellation. In the matter of Bhagwati v. Chamar Rai, 1980-II MPWN Note-22 wherein the suit was instituted for partition and separate possession of 1/4th share in the suit lands which are separately assessed to land revenue, this Court held that perusal of clause (vi-a) of section 7 shows that in a suit for partition, without claiming separate possession, the suit has to be valued according to one-half of the value of the plaintiffs share of the property. This is indicative of the facts that court fee payable on such a suit is less than the court fee payable when a suit is instituted for partition and separate possession on the ground that the plaintiff is out of possession. The legislative intent is thus clear that when a plaintiff claims partition and separate possession on the ground that he is out of possession, the claim is to be valued just like a suit for possession simpliciter. In fact when a co-owner files a suit for partition and separate possession, on the ground that he is out of possession, there is no difference between such a suit and a suit for possession, there is no difference between such a suit and a suit for possession based on title. The amendment to the Court Fees Act (Act No.4 of 1976) with effect from 1.3.76 was introduced to clearly that even in cases where possession of a part of the land separately assessed to land revenue was claimed, court fees payable on such claim will be proportionately worked out for such part of the land. This clarification had become necessary to get over some judgment which had laid down that where the claim was for the entire land separately assessed to land revenue, its market value will be deemed to be twenty times the land revenue but if it was for a part of land and that part was not separately assessed, the claim will have to be valued on the actual market also. The intention was to provide relief to agriculturist and the owners of land revenue paying lands. 6. Keeping in view the aforesaid position of law, this Court is of the view that while passing the impugned order learned Court below has not taken into consideration the position of law for the purpose of payment of court fee in a suit for partition where the agricultural land is involved. However, since the respondents are not before this Court, therefore, instead of issuing notice, petition is disposed of with a short direction that the petitioner shall be at liberty to move an appropriate application for review of the impugned order along with an application for condonation of delay. However, since the respondents are not before this Court, therefore, instead of issuing notice, petition is disposed of with a short direction that the petitioner shall be at liberty to move an appropriate application for review of the impugned order along with an application for condonation of delay. If such an application is filed, then after condoning the delay and after giving an opportunity of hearing to the respondents No.1, 3, 4 & 5 who have filed the application before learned trial Court, learned trial Court shall decide the same keeping in view the aforesaid position of law by passing a speaking order, till then impugned order shall remain in abeyance. With the aforesaid observations, petition stands disposed of.