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Himachal Pradesh High Court · body

2014 DIGILAW 2000 (HP)

Surjit Singh v. Sachin Raizada

2014-12-24

RAJIV SHARMA

body2014
JUDGMENT : RAJIV SHARMA, J. 1. This petition has been filed for modification of order dated 31.10.2013, rendered by the learned Civil Judge (Jr. Divn.), Court No. IV, Una in CMA No. 155 of 2013 in Civil Suit No. 30 of 2013. 2. Key facts, necessary for the adjudication of this petition are that the respondent-plaintiff (hereinafter referred to as the plaintiff for convenience sake) has filed suit for partition of land measuring 1-69-22 hectares, as per the details given in the plaint against the petitioner and proforma respondents. The petitioner is father of respondents. The relevant pedigree table as per the plaint is as under: Tarlok Singh Ran Singh Ram Rakha Surjit Singh Sachin Monika Vandana 3. The land was owned and possessed by Tarlok Singh, common ancestor. It devolved upon Ran Singh, thereafter on Ram Rakha and thereafter on Surjit Singh-petitioner. The plaintiff, by virtue of Hindu Law (Mitakshra School), has acquired the right in the property by birth. The suit property is coparcenary property in the hands of the petitioner. The plaintiff and proforma respondens, being coparceners have 1/4th share each in the coparcenary property. The plaintiff wanted the partition of the coparcenary property. 4. The written statement was filed by the petitioner. A preliminary objection was taken that the suit property was not properly valued for the purpose of court-fee and jurisdiction. The value of the suit is not less than Rs. 2,53,83,000/- (Two crores fifty three lacs eighty three thousands). It was denied that the parties were governed by the Hindu Mitakshara Law. According to the petitioner, the parties were governed by Hindu Succession Act, 1956. He is the only son, who succeeded to the property from his father under Hindu Succession Act, 1956. It was denied that the property in dispute was coparcenary property. His father has executed a registered “Will” in favour of three sons, including the petitioner. The mutation to this effect was sanctioned in the revenue record vide mutation No. 2018. All the coparceners including the petitioner partitioned the land and mutation to that effect was sanctioned in the revenue record in respect of co-owners including the petitioner and the suit land fell into the share of the petitioner. 5. The petitioner filed an application under Order 7 Rule 11 CPC for rejection of the plaint. All the coparceners including the petitioner partitioned the land and mutation to that effect was sanctioned in the revenue record in respect of co-owners including the petitioner and the suit land fell into the share of the petitioner. 5. The petitioner filed an application under Order 7 Rule 11 CPC for rejection of the plaint. It was specifically averred in the application that the minimum market value of the property was Rs. 1500/- per sq. meter and total gross value of the suit land comes to Rs. 2,53,83,000/-. According to the petitioner, the plaintiff was required to correct the valuation of the suit land and to affix the ad valorem court-fee on the market value of the suit property. The application was contested by the plaintiff. The learned trial Court passed the order in CMA No. 155 of 2013 dated 31.10.2013. According to the operative portion of the order dated 31.10.2013, the present case was covered as per Section 7 (v) and the plaintiff was required to properly value the suit. The application was allowed as per the operative portion and the plaintiff was asked to make proper valuation of the suit by affixing necessary court-fee. 6. The core issue involved in this petition is whether the court-fee was payable under Section 7 (iv) (b) or Section 7 (v) or Schedule II, Article 13 (vi) of the H.P. Court Fees Act, 1968. 7. The case of the plaintiff, precisely, is that the suit land is a coparcenary property. The parties are governed under the Mitakshara Law. The petitioner is the “Karta” of the family. He started alienating the suit property. According to the plaintiff, he along with proforma respondents have 1/4th share in the suit land and they wanted separate share of the property. According to the petitioner, the suit property was not coparcenary property. He has got this property on the basis of the registered “Will” executed by his father. 8. Section 7 (iv) (b) of the H.P. Court Fees Act, 1968 (hereinafter referred to as “the Act”) reads as under: “7. Computation of fees payable in certain suits- …………………………………… (iv) in suits: (b) to enforce a right to share in joint family property; to enforce the right to share in any property on the ground that it is joint family property.” 9. Section 7 (v) and Schedule II-13 (vi) of the Act reads as under: “7 (v). Computation of fees payable in certain suits- …………………………………… (iv) in suits: (b) to enforce a right to share in joint family property; to enforce the right to share in any property on the ground that it is joint family property.” 9. Section 7 (v) and Schedule II-13 (vi) of the Act reads as under: “7 (v). for possession of land, houses and gardens; In suits for the possession of land houses and gardens- according to the value of the subject matter and such value shall be deemed to be: Where the subject matter is land: (a) where the land forms an entire estate, or a definite share of an estate paying annual revenue to Government; or forms part of such an estate and is recorded in the Collector's register as separately assessed with such revenue, and such revenue is permanently settled-ten times the revenue so payable; (b) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government or forms part of such estate and is recorded as aforesaid; and such revenue is settled, but not permanently- ten times the revenue so payable; (c) where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue; and net profits have arisen from the land during the year next before the date of presenting the plaint fifteen times such net profits, but where no such net profits have arisen therefrom-the amount at which the court shall estimate the land with reference to the value of similar land in the neighbourhood; (d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as above mentioned-the market-value of the land; Explanation - The word “estate”, as used, in this paragraph means any land subject to the payment of revenue, for which the proprietor or a farmer or ryot shall have executed as separate engagement to Government, or which, in the absence of such engagement, shall have been separately assessed with revenue; (e) for houses and gardens; where the subject matter is house or garden-according to the market-value of the house or garden: …………………………………………… THE SECOND SCHEDULE 13. Plaint or memorandum of appeal in each of the following suits:- (i)……………. ……………….. Plaint or memorandum of appeal in each of the following suits:- (i)……………. ……………….. (vi) every other suit where it is not possible to estimate at a money value Nineteen the subject matter in dispute and rupees fifty which is not otherwise provided for paise. by this Act.” 10. In the case of Asa Ram and others vrs. Jagan Nath and ors., reported in AIR 1934 Lahore 563 (Full Bench), the Full Bench has held that in a suit to enforce the right to share in joint family property, i.e., a suit to be restored to joint possession or enjoyment of joint family property, court-fee would be payable under S. 7 (iv) (b), ad valorem on the value of the relief as fixed by the plaintiff; and in a suit for partition of joint property, whether owned by a joint family or otherwise, where the plaintiff alleges that he is in actual or constructive possession thereof, court-fee payable would be Rs. 10 under Art. 17 (vi), Sch. 2, Court-fees Act. 11. In the present case, the case of the plaintiff is that the suit property is coparcenary property. He would be deemed to be in constructive joint possession of the suit property. He has merely asked for partition of the joint Hindu property. 12. In the case of Shankar Maruti Girme vrs. Bhagwant Gunaji Girme and others, reported in AIR (34) 1947 Bombay 259, the Full Bench has held that a partition suit, where the plaintiff under accepted principles of Hindu law is in constructive joint possession of the whole property, is not a suit in ejectment in the ordinary sense of the term. The plaintiff in constructive possession of the whole seeks that the mode of enjoyment of the property by himself and by other members of his family shall be changed, and that, instead of enjoying joint possession of the whole, his possession shall be altered to separate possession of a part. Hence a suit for partition of joint family property, when the plaintiff is in constructive possession, is not a suit for the possession of property within the meaning of para (v) of S. 7, Court-fees Act. As such a suit falls under Sch. II, Art. 17, cl. (vii). It has been held as follows: “4. Hence a suit for partition of joint family property, when the plaintiff is in constructive possession, is not a suit for the possession of property within the meaning of para (v) of S. 7, Court-fees Act. As such a suit falls under Sch. II, Art. 17, cl. (vii). It has been held as follows: “4. As to whether a suit for partition of joint family property can properly be said to be a suit for possession of property, a suit for possession of immovable property is usually termed a suit in ejectment, and its ordinary significance is that the plaintiff is out of possession, that the defendant is wrongfully in possession, and that the plaintiff seeks that possession should be taken from the defendant and be given to him. But a partition suit, where the plaintiff under accepted principles of Hindu law is in constructive joint possession of the whole property is certainly not a suit in ejectment in the ordinary sense of the term. The plaintiff in constructive possession of the whole seeks that the mode of enjoyment of the property by himself and by other members of his family shall be changed, and that, instead of enjoying joint possession of the whole, his possession shall be altered to separate possession of a part. An extreme and no doubt unusual but by no means impossible example of partition suit is one by a manager in physical possession of the whole of the joint family property who nevertheless may seek the assistance of the Court for partition and for his separate possession of only a fraction of the property. All the High Courts other than Bombay, on the above line of reasoning, have accepted that a suit for partition of joint family property, when the plaintiff is in constructive possession, is not a suit for the possession of property within the meaning of para (v) of Section 7 of the Court-fees Act, and this reasoning may also be applied to cases where the joint family property is entirely movable property. Candy J. then went on to hold that, as the plaintiffs claimed partition and possession of a definite share in certain lands and houses, which could be valued, ad valorem court-fee was leviable on the principle laid down in Mahadeva Balwant Karandikar v. Laxuman Balwant Karandikar. In Dagdu v. Tolaram (1909) I.L.R. 33 Bom. 658, S.C. 11 Bom. Candy J. then went on to hold that, as the plaintiffs claimed partition and possession of a definite share in certain lands and houses, which could be valued, ad valorem court-fee was leviable on the principle laid down in Mahadeva Balwant Karandikar v. Laxuman Balwant Karandikar. In Dagdu v. Tolaram (1909) I.L.R. 33 Bom. 658, S.C. 11 Bom. L.R. 1074 reference was not made either to Mahadeva Balwant Karandikar v. Laxuman Balwant Karandikar or to Balwant Ganesh v. Nana Chintamon. It appears that, between the time of the decision in Balwant Ganesh v. Nana Chintamon and the year 1909, when Dagdu's case came up, opinion had been expressed in one case, Motibhai v. Haridas (1896) I.L.R. 22 Bom. 315, that a partition suit falls within Section 7 (iv) (b) of the Court-fees Act. The point in Motibhai v. Hondas was not really one of court-fees, but of jurisdiction. Batchelor J. dealt with Motihbai's case in Dagdu v. Totaram and held that the suit contemplated by Section 7 (iv) (b) was one to enforce the right to "share" in property, and not the right to "a share" in property, and expressed the opinion that a suit falling under Clause (b) is one for the enforcement of what one might call an abstract claim or right, which conclusion, as he pointed out, brings Clause (b) into proper logical neighbourhood with the other clauses of paragraph (iv). Having rejected the only argument which appears to have been addressed, namely, that the decision in Motibhai v. Haridas should be followed, Batchelor J. seems to have concluded that the suit then must necessarily fall under paragraph (v) of Section 7 as being a suit for the possession of land. Of course as Clause (vi) of Article 17 of Schedule II is a residuary clause, if the suit can properly be brought under any of the sections of the Act, the question of this clause does not arise, but it may at least be said that the existence of a residuary clause was not at all considered in Dagdu's case.. The Calcutta High Court, in a series of decisions ending with Nandalal Mukherji v. Kalipada Mukherji (1931) I.L.R. 59 Cal. 313 already referred to, but also apparently based on Kirty Churn Mitter v. Aunath Nath Deb. has held that Article 17, el. (vi), Schedule II applies to a suit such as the present. The Calcutta High Court, in a series of decisions ending with Nandalal Mukherji v. Kalipada Mukherji (1931) I.L.R. 59 Cal. 313 already referred to, but also apparently based on Kirty Churn Mitter v. Aunath Nath Deb. has held that Article 17, el. (vi), Schedule II applies to a suit such as the present. It is a matter for some surprise that one decision, namely, that in Kitty Churn Mitter v. Aunath Nath Deb, appears to be the foundation stone of the two opposing views taken by the Calcutta and the Bombay High Courts, for the difference between the Dayabhaga and Mitakshara schools in that under the former the share of a coparcener is defined while under the latter it is not, does not appear to be substantial, if any, ground for general distinction. In Bengal the Legislature in the year 1935, by amendment of the Court-fees Act, accepted and adopted the view which the Calcutta High Court had always taken. By Bengal Act VII of 1935, among other amendments to Section 7 of the Court-fees Act was added a el. (vi) (A) which provides that in suits for partition and separate possession of a share of joint family property, or of joint property, or to enforce a right to "a share" in any property on the ground that it is joint family property or joint property, if the plaintiff has been excluded from possession of the property in which he claims to be a coparcener or coowner, the court-fee is to be according to the market value of the share in respect of which the suit was instituted. Also to Article 17 of Schedule II of the Act, after the entry (v) was added an entry (v)-A, whereby a fee of Rs. 15 is prescribed as the court-fee in suits for partition and separate possession of a share of joint family property or of joint property or to enforce a right to a share in any property on the ground that it is joint family property or joint property if the plaintiff is in possession of the property in which he claims to be a coparcener or co-owner. The decisions of the other High Courts on the point are set out at length in the latest Madras full bench ruling, and no possible distinction can be made to these cases on grounds of differences in the Mitakshara and Dayabhaga schools of law. It appears that, before this latest decision, the 'Madras High Court had held in accordance with the one Bombay decision, Motibhai v. Haridas, that suits such as the present fell within Section 7 (iv) (b) of the Court-fees Act. The view expressed by Batchelor J. in Dagdu's ease as to the inapplicability of Clause (b) of paragraph (iv) of Section 7 was approved by the full bench, but the Bombay view that partition suits fall under Section 7, paragraph (v), was emphatically dissented from. As I have already stated, the basis of all the decisions of the other High Courts is that a suit for partition is not a suit for possession when a plaintiff in constructive possession seeks to have the mode of his possession changed, and it is held that paragraph (v) of Section 7 must be restricted to the suits which of their essential nature are suits for possession. It is also held by those High Courts that the second condition of Article 17 (vi) of the second schedule, or Clause (vii) as it is by the recent Bombay amendment of the second schedule, that it is; not possible to estimate at A money-value the subject-matter in dispute, is also satisfied; for the value of a change in the mode of possession is not capable of being expressed in money. I think that these decisions are right, and it does appear that the Bombay view, although it has stood for so many years is based on three decisions, two of which rest upon a Calcutta decision, which appears itself to suggest the opposite result, and a third which appears to have been given without taking into consideration Article 17 of Schedule II, and where it seems to have been assumed that, if suits of this nature do not fall under Clause (b) of paragraph (iv) of Section 7 of the Court-fees Act, they must necessarily fall under paragraph (v) of that section. In these circumstances, in view of the weight of authority, I think that it should now be declared that the Bombay decisions are not good law, and that this Court should fall into line with all other High Courts, and should hold that, where in a suit for partition the plaintiff claims to be in constructive possession with the other coparceners of the joint property, the suit falls under Schedule II, Article 17, Clause (vii) (according to the Bombay amendment) and the court-fee payable is the fixed fee, which under the present Act is Rs. 15.” 13. In the case of Nagorao Bapu and ors. Vrs. Mahadeo Bapu Doma Bapu and others, reported in AIR (37) 1950 Nagpur 81, the learned Single Judge has held that where the plaint in a suit asserts a separation in status before the suit and prays for partition and separate possession of joint family property but the plaintiff does not admit that there is any denial of title, the position is exactly the same as the one which occurs when the family is joint. In such a case, the plaintiff merely seeks a change in the mode of enjoyment and that is incapable of valuation. Therefore, Art. 17 (vi) is applicable and the court fee paid under that Article would be proper in the first instance. It has been held as follows: “ (11) But that does not settle the matter because the plaintiffs do not admit that there has been any denial of title. All they say is that the defendants have evaded partition. Even if they had refused partition that would not have amounted to ouster unless the plaintiff's title was denied. Therefore the position is exactly the same as the one which occurs when the family is joint. In such a case it has been held that the plaintiff merely seeks a change in the mode of enjoyment and that that is incapable of valuation. Therefore Art. 17 (vi) is applied. See Santosh v. Rama, I.L.R. (1949) Nag. 35 at pp. 46, 48; (A.I.R. (86) 1949 Nag. 805). It follows that the court fee paid on the plaint was proper in the first instance. (12) But, as explained in Santosh v. Rama I.L.R. (1949) Nag. 85: (A.I.R. (36) 1949. Nag. Therefore Art. 17 (vi) is applied. See Santosh v. Rama, I.L.R. (1949) Nag. 35 at pp. 46, 48; (A.I.R. (86) 1949 Nag. 805). It follows that the court fee paid on the plaint was proper in the first instance. (12) But, as explained in Santosh v. Rama I.L.R. (1949) Nag. 85: (A.I.R. (36) 1949. Nag. 805), it is also necessary to scan the defendants” written statement to see whether there is any allegation of ouster before suit. On looking through the written statements, I do not find any such allegation. The defendants deny the plaintiff's title to certain items of property and allege that they have no title because according to the defendants, these items were partitioned in 1939. But that is not enough to constitute ouster. It is not enough, as in a case of adverse possession, merely to deny the plaintiff's title and keep them out of possession , it is necessary to bring this home to the plaintiffs. See Santosh v. Rama, I.L.R. (1949) Nag. 35; (A.I.R. (86) 1949 Nag. 805). Tehre is no allegation to that effect in the written statement. Then against the ouster must have been before the suit ore ise ad valorem court fees are not payable. There is no allegation here that there was any denial of title before suit. In the circumstances I hold that Art. 17 (vi) applies and that the fixed court fee of Rs. 20 paid on the plaint was proper.” 14. In the case of Onkar Mal and others vrs. Ram Sarup and others, reported in AIR 1954 Allahabad 722, the Full Bench has held that the allegations in the plaint determine the court-fee. It has been held as follows: “14. In the matter of computation of court-fee the aforesaid general principle cannot have so wide a scope as it has in determining the nature of the suit. After the category of the suit has been ascertained, the Court has to find out whether the plaintiff has correctly valued the relief for purposes of court-fees in the manner laid down in Section 7 of the Courtfees Act. This process also involves the examination of the plaint allegations and, if there is nothing to indicate otherwise, the plaintiff's valuation 'prima facie' is accepted as correct. This process also involves the examination of the plaint allegations and, if there is nothing to indicate otherwise, the plaintiff's valuation 'prima facie' is accepted as correct. Ordinarily, the Court would accept court-fee paid in the first instance as correct, but if it transpires subsequently that an allegation of fact on the basis of Which the courtfee was computed is not correct, then it is within the power of the Court to demand additional court-fee before the judgment is pronounced. Section 6, Court-fees Act directs that no document (which term includes a plaint) which is not properly stamped shall be received unless it bears proper court-fee paid according to the provisions of the Court-fees Act. It was with a view to recognise the power of a Court to realise additional court-fee that the Legislature thought it proper to enact Order 7, Rule II (c) as also Section 149, Civil P. C. Take for instance a case in which the plaintiff sues for possession of a house which he values at its. 500/-. If the defendant contests this valuation, the Court must first determine the market value of tile house in the manner laid down in Section 10, Courtfees Act, and if it comes to the conclusion that the market value of the house for the purpose of court-fee is Rs. 1,000/-, it has the power to demand the additional court-fee which if not paid would entitle the Court to reject the plaint. It is thus evident that the general rule that the payment of the court-fee must abide by the allegations in the plaint in all circumstances cannot be accepted as correct. Where the court has reason to think on the material placed before it that the plaintiff has made false or incorrect allegations with a view to avoid payment of Court-fee, the Court has power to intervene and realise court-fee at any stage of the proceedings in the case. If, however, the mistake is not detected by the trial Court and also by the appellate Court, the power of the High Court to require payment of the court-fees that should have been paid in the lower Courts is expressly recognised in the second part of Section 12, Court-fees Act. If, however, the mistake is not detected by the trial Court and also by the appellate Court, the power of the High Court to require payment of the court-fees that should have been paid in the lower Courts is expressly recognised in the second part of Section 12, Court-fees Act. It is, therefore, not correct to say that even in the matter of computation of court-fee, plaint allegations should be accepted as the last word on the question of the payment of court-fee.” 15. In the case of Mahadeo Ganesh and another vrs. Sadashiv Khanderao and ors., reported in AIR 1953 M.B 151 , the Division Bench has held that the expression “to enforce the right to share in the property”, imply that plaintiff has been excluded from enjoyment of common property. Clause does not apply to a suit for partition by co-owner who has not been excluded from enjoyment of common property. Such a suit comes under clause (vi) of Art. 17 of Schedule II corresponding to Art. 11 (vi) of Indore Court-fees Act. It has been held as follows: “ (5) Turning now to the ground urged by Mr. Kulkarni we may point out that under Art. 11 of the Indore Court-fees Act the amount of court-fee payable by a defendant who is a party to the suit for partition and files an appeal against the decision given against him would depend entirely on the amount of the court-fee that was paid by the plaintiff. Article 11 opens with these words: “Plaint or memorandum of appeal in each of the following suits.” It is cl. VI of this Article which according to Mr. Newaskar applies to this case. It runs: “Every other suit where it is not possible to estimate at a money-value (?) the subject-matter in dispute and which is not otherwise provided for by this Act.” As observed by Chitaley and Rao in their commentary on the Court-fees Act, 1944 Edition page 128 (notes on section 7 (IV) (b) note (2), it is now generally settled in most of the High Courts that this clause (clause 7 (IV) (b) does not apply to a suit for partition by a co-owner who has not been excluded from the enjoyment of the common property. This view, the commentators added is based on the ground that the words in the clause “to enforce the right to share in the property” imply that the plaintiff has been excluded from the enjoyment of such property and are inapplicable to a case in which he has not been so excluded. Reference in support of this view is made to a number of cases including – “Kameshwar Singh v. Rajbansi Singh'. AIR 1943 Pat 433 (438) (A); -- “In re Nandlal” AIR Nath', AIR 1934 Lah 563 (573) (FB) (C) and – “Bhagwan Appa Wani v. Shivalla Wani” AIR 1927 Nag 248 (249) (D). See also in – “Ma Ma Nyun v. Maung Mya', AIR 1938 Rang 76 (78) (E). It has been held by Madras and Allahabad High Courts as well as in Sind that such a suit comes under cl. (VI) of Art. 17 of the II schedule which is the same as article 11 (VI) of the Indore Court-fees Act. See – “Mallayya v. Jagannadhamma', AIR 1942 Mad 10-3 (1) (F); -- “Narain ohan Dev v. Mt. Krishna Ballabhi Dvi “, AIR 1935 All 292-293 (G) and – “Haji Yusuf v. Ghulam Hussain Kassim', 16 Ind case 771 (772) (Sind) (H). We respectfully agree with the view taken in these decisions as to the applicability art. 17 of II schedule to such cases. In the case before us admittedly Keshav was in joint possession and accordingly a court-fee of Rs.15/- was paid.” 16. In the case of Karibasappa vrs. Jademallappa & ors., reported in AIR 1955 Mysore 140, the learned Single Judge has held that a member of the joint family who files a suit for a declaration that he is entitled to a share in the joint family properties and seeks for division of the properties by metes and bounds and alleges that he is in constructive possession of the properties is liable to pay fixed court fee under Sech. II Art. 17 (vi). It has been held as follows: “3. II Art. 17 (vi). It has been held as follows: “3. The short question that arises for consideration in this revision petition is whether a member of the joint family who files a suit fur a declaration that he is entitled to a share in the joint family properties and seeks for division of the properties by metes and bounds and alleges that he is in constructive possession of the properties described in the schedule is liable to pay ad valorem Court fee or fixed Court fee under Article 11-B, Schedule II. Mysore Court Fees Act (Article 17 of the Central Act). The Petitioner had alleged in his plaint in unequivocal terms that he was in joint possession of the properties along with Defendants 1 to 5. What the Petitioner wanted was division of the properties by metes and bounds and delivery of his 1/3 share. The question whether the Plaintiff is in possession of the joint family propertied constructively or otherwise for the purposes of levying Court fee should be determined oh the allegations made in the plaint. Merely because the defendants deny that the Plaintiff was in joint possession of the suit schedule properties, the nature of the suit i3 not altered. (Vide -- 'Asa Bam v. Jagan Nath,' AIR 1934 Lah 563 (FB) (A), and In the matter of Nand Lal Mukherjee, AIR 1932 Cal 227 (B). It is fairly well settled law that it is the allegation in the plaint that should be looked into and that the denial of the allegation by the defendants does not in any way take away the suit out of of the scope of Article 11-B, Schedule II Court Fees Act (Vide --- 'Manghamnal v. Tolaram,' 16 Ind Cas 773 (Sind) (C). Therefore the learned District Judge was not justified in taking into, consideration the statements made by the Defendants in their written statement that the Petitioner was not in actual or constructive possession of any of the suit schedule items and proceeding to hold an enquiry as to whether he was in possession of all the suit items and whether the Court fee paid by him was sufficient. The learned District Judge has been entirely influenced by the fact that the Defendants denied that the Plaintiff was in constructive possession of any of the items and by the evidence adduced by them to establish that the Petitioner was In possession of only a house belonging to the joint family and was not in actual physical possession of the other items. He seems to have been further influenced by the fact that the Petitioner had omitted to give a full description of the suit schedule items attached to the plaint in his suit that he had filed before the Munsiff, Tarikere at the first instance. The fact that it is the substance of the plaint and not to the mere shape given to it in the plaint that has to be looked into for purposes of assessment of Court-fee has been decided in --'Aswathanarayana Rao v. Makam Suriya Setty,' 56 Mys. H. C. R. 67 (D). The fact that the order passed by the learned District Judge directing payment of ad valorem Court fee on the value of the 1/3 share of the Petitioner is erroneous is clear from the decision of this Court reported in -- 'Krishnappa v. Bhasyam Iyengar,' 44 Mys H. C. R. 203 (E). It was held in that case that where a co-owner, co-sharer or co-tenant alleges that he is in joint possession of the property in suit and wants his share to be separated and put into his possession, a fixed Court-fee under Article 11-B is sufficient. The several decisions of the other High Courts in India have all been reviewed in the above case and this Court has laid down that when a suit is for partition by a Plaintiff who is in possession of the property, there is no question that Article 17 (11-B of our Act) would apply. It has been further held that even when the propertv is not joint family property and the Plaintiff is not a coparcener, is only a co-sharer he is entitled to maintain a suit for partition without paying ad valorem Court-fee, if his possession of the Joint property is admitted or can be gathered by the allegations made in the plaint. To the same effect is the decision reported in -- 'Nagendriah v. Ramachandriah,' AIR 1953 Mys 108 (F). To the same effect is the decision reported in -- 'Nagendriah v. Ramachandriah,' AIR 1953 Mys 108 (F). It is laid down by this Court in this case that if a Plaintiff alleges himself to be a co-sharer and to be in joint possession of the plaint schedule properties with the defendants and brings a suit for partition and possession of his snare he is entitled to pay a fixed Court fee under Article 11-B, Court Pees Act (Article 17 of the Central Act). It has been further laid down that even after the trial Court found that the Plaintiff was not in possession of some of the items of the suit schedule properties and was not entitled to claim or get any share in them and the suit in respect of those properties is dismissed the Plaintiff is entitled to pay a fix Court fee on the memorandum of appeal against the decree. The several decisions of the other High Courts in India including a decision of this High Court reported in 44 Mys HCR 203 (E), have all been reviewed in the above case. In the light of the above decisions, the order passed by the learned District Judge that because the Defendants had denied that the Plaintiff was in possession of the properties or that the evidence recorded by him disclosed that the Plaintiff was not in actual physical possession of the suit schedule properties he is liable to pay ad valorem Court fee on the value of his share is untenable. Reference in this connection may also ba made to a decision reported in - - 'Premananda v. Dhirendra Nath,' (G) Wherein it has been observed: 'The question as to what Court fees are payable on a plaint has to be decided on the allegation in the plaint and the nature of the relief claimed, whatever may transpire in the evidence, the plaint remains the same until and unless it is amended". It has been further held in this Calcutta case that so long as the plaint is not amended, no ad valorem Court fee is payable. All that the Defendants pleaded, in their written statement was that they had given away a share to the Petitioner in all the suit schedule properties. It has been further held in this Calcutta case that so long as the plaint is not amended, no ad valorem Court fee is payable. All that the Defendants pleaded, in their written statement was that they had given away a share to the Petitioner in all the suit schedule properties. They had not disclosed what items of the suit schedule properties had actually fallen to the share of the Petitioner and were in his actual physical possession. On a consideration, therefore, of the several authorities, I am of opinion that the Order passed by the learned District Judge, Shimoga directing the Petitioner to pay ad valorem Court fee calculated on the value of his share cannot be supported and is liable to be set aside. The Petitioner is entitled to pay a fixed Court fee under Article 11-B of Schedule II, Court Fees Act and maintain his suit.” 17. In the case of Mina Ram vrs Amolak Ram & ors, reported in AIR 1966 Himachal Pradesh 4, it was held that court-fee is to be determined in the light of averments made in the plaint, uninfluenced by the pleas in the written statement. Where the allegations in the plaint, read as a whole, amount to an averment that the plaintiff is in actual possession of some property and in constructive possession of the other, the relief of partition which is claimed by him, does not fall within either S. 7 (iv) (b) or S. 7 (v). The relief falls within the four corners of Article 17 (vi) of Schedule -II. It has been held as under: “14. The learned counsel for respondent No. 1 invited the attention of the Court to paragraph 11 of the plaint wherein it is stated that respondent No. 1 had refused to render accounts after 1960 and to paragraph 12 wherein it is stated that respondent No. 1 had denied the right of the petitioner, and contended that the clear inference from the aforesaid statements was that the petitioner admitted in the plaint that he had been ousted from the enjoyment of the joint property, and that, therefore, either Section 7 (iv) (b) or Section 7 (v), and not Article 17 (vi), Schedule II, of the Court-Fees Act, was applicable to the relief of partition. The contention of the learned counsel does not appear to be correct. The contention of the learned counsel does not appear to be correct. A reading of the plaint, as a whole, shows that the allegations of the petitioner were that he had been occasionally visiting the property in suit which was being managed by respondent No. 1, on behalf of and for the benefit of the joint Hindu family, that he had been receiving profits of the orchard and that it had become difficult to enjoy the property jointly. The petitioner did not state in the plaint that he had been ousted from possession of the property. The refusal to render accounts and denial of title, by respondent No. 1, had furnished cause of action to the petitioner, for the suit. Those facts were stated, in the plaint, in that context. The allegations, in the plaint, read as a whole, amounted to an averment that the petitioner was in actual possession of some property and in constructive possession of the other. Therefore, the relief of partition, claimed by the petitioner, did not fall within the ambit of either Section 7 (iv) (b) or Section 7 (v) of the Court-Fees Act, but fell within the four corners of Article 17 (vi), Schedule II.” 18. The case projected by the plaintiff is that he was in constructive possession of the suit property under the joint family property and he wanted his separate share for enjoyment of the same. Thus, his case would not fall either under Section 7 (iv) (b) or Section 7 (v) of the Act. It would fall under Article 13 (vi) of Schedule II of the H.P. Court Fees Act, 1968. The learned trial Court has not correctly appreciated the legal position in view of the averments made in the plaint and has passed a very vague order. 19. Accordingly, the petition is dismissed. The trial Court is directed to proceed with the matter in accordance with the observations made hereinabove with regard to the payment of the court-fee under the H.P. Court Fees Act, 1968, by the plaintiff.