JUDGMENT : Defendant No.2, in a suit, challenges the order of the Trial Court dismissing an application seeking consideration of the question of pecuniary jurisdiction as a preliminary issue. 2. The plaintiff instituted the Original Suit for declaration of his 1/4 th share over the plaint schedule property. The plaintiff and defendants are siblings. 3. The plaint schedule property originally belonged to the parents of the parties. Their parents died. The plaintiff and defendants have equal rights over the plaint schedule property and the other assets. The plaintiff valued the suit under Sections 27(c) and 37(2) of the Kerala Court Fees and Suits Valuation Act (for short “the Act”). 4. The defendants raised a contention that as the plaintiff prayed for declaration of his 1/4 th right over the plaint schedule property, the prayer for declaration should have been valued under Section 25(b) of the Act. The Trial Court held that the plaintiff sought a right in the textile business run in the plaint schedule property and not a partition of the building, and therefore, the suit is not one contemplated under Section 37(2) of the Act. The Trial Court further held that the relief (a) prayed for falls under Section 50 of the Act, for which a fixed fee is to be paid.\ 5. The plaint schedule property is described as follows: “Property description Two-storied building in Parassala Panchayat, situated near Parassala Post Office Junction, comprising of two rooms bearing Nos.1355 and 1356 in P.P 12 lying together as single on the ground floor and a room bearing No.455 in P.P 12 on the first floor and together with all other improvements therein.” 6. The reliefs prayed for in the plaint are as follows: “(a) To grant a decree declaring 1/4 share of the plaintiff over the plaint schedule property. (b) To grant a decree of a permanent prohibitory injunction prohibiting defendant Nos.1, 4 and 5 from interfering with the right of the plaintiff over the plaint schedule property. (c) To grant any other appropriate order or direction which the plaintiff may seek from time to time and which this Hon'ble Court may deem fit and proper. (d) To allow the plaintiff to realise all the costs from the defendants.” 7. The learned counsel for the petitioner contended that the prayer (a) should have been valued under Section 25(b) of the Act. (d) To allow the plaintiff to realise all the costs from the defendants.” 7. The learned counsel for the petitioner contended that the prayer (a) should have been valued under Section 25(b) of the Act. The plaintiff valued the relief (a) under Section 37(2) and relief (b) under Section 27(c) of the Act. 8. The relevant portion of the impugned order reads thus: “From the arguments made and the course taken by the suit, it is clear that the plaintiff seeks a right in the textiles run in the plaint schedule building and not partition of the building itself. Hence, it is not really a suit contemplated under Section 37(2) of the Court Fees Act. The only form of suit relating to partnership firm in the Act is suit for dissolution of firm. This suit does not fall thereunder either. Hence, the court comes to the conclusion that the first relief in the suit falls under Section 50 of the Court Fees Act that provides for suits not otherwise provided for in the Act. The fixed court fee to be paid therein is ?50/-. Hence, though the valuation of the suit is made in not properly, the court fees paid by the plaintiff is sufficient. This point is answered against the petitioners.” 9. This Court appointed Adv. D.Kishore as Amicus Curiae. The learned Amicus Curiae submitted that Section 37(2) of the Act is applicable only 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. The learned Amicus Curiae further submitted that the pleadings in the plaint are to be considered for assessing the valuation and an indication in the pleading that the plaintiff has been excluded from the possession is sufficient to hold that the fee is to be paid under Section 37(1) of the Act. The learned Amicus Curiae also submitted that as the plaintiff has prayed for 1/4 th right over the plaint schedule property, the suit cannot be treated as a suit for partition, but it is a suit for declaration and consequential injunction. The learned Amicus Curiae submitted that the finding of the Trial Court that the relief (a) falls under Section 50 of the Act cannot be sustained as specific provisions are provided in the Act for valuing the reliefs sought in the suit. The learned Amicus Curiae submitted that the finding of the Trial Court that the relief (a) falls under Section 50 of the Act cannot be sustained as specific provisions are provided in the Act for valuing the reliefs sought in the suit. 10. The learned Amicus Curiae relied on Upendran and another v. Indira Kumari ( 2017 KHC 862 ), E.P.Muthu Rowther v. Muhammed Ali Rowther (1970 KHC 201) and T.Hameed and others v. T Abdulla Haji and others [ 2007 (3) KHC 430 ] in support of his submissions. 11. In Relief (a), the plaintiff prayed for a declaration of his 1/4 th right over the plaint schedule property. Therefore, this relief should have been valued under Section 25(b) of the Act. A reading of the whole plaint gives an indication that the plaintiff wanted the partition of the plaint schedule property. But the plaintiff did not frame the plaint in such a way as to seek the relief of partition. The learned counsel for the petitioner submitted that in view of the averment in paragraph 5 of the plaint that the defendants do not permit the plaintiff to take profits from the plaint schedule property, the relief of partition is to be valued under Section 37(1) of the Act. 12. Section 37 of the Act reads thus: “37. 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 plaintiff's share. (2) 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:- When the plaint is presented to- (i) a Munsiff's Court Rupees fifty (ii) a Sub-Court or a District Court. Rupees three hundred. (3) Where, in a suit falling under sub-section (1) or sub- section (2), a defendant claims partition and separate possession of his share of the property, fee shall be payable on his written statement computed on half the market value of his share or at half the rates specified in sub-section (2), according as such defendant has been excluded from possession or is in joint possession. (4) Where, in a suit falling under sub-section (1) or sub- section (2), the plaintiff or the defendant seeks cancellation of decree or other document of the nature specified in Section 40, separate fee shall be payable on the relief of cancellation in the manner specified in that section.” 13. As per sub-section (1) of Section 37 of the Act, 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 the possession of such property, the fee shall be computed on the market value of the plaintiff's share. 14. It is trite that Section 37(1) of the Act is applicable if the plaintiff is “excluded” from possession of the property. As far as co-sharers are concerned the law presumes constructive possession of the property by all sharers. In order to come to an inference that a sharer is excluded from possession, there should be a clear and specific averment in the plaint that he had been “excluded” from joint possession. In the present case, the plaintiff only pleaded that he is not permitted to take the usufructs from the property. This pleading cannot be treated as a pleading to the effect that he has been excluded from joint possession. 15. In Neelavathi v. N. Natarajan [ (1980) 2 SCC 247 ], the Supreme Court considered this question and held that before the plaintiffs could be called upon to pay court fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been “excluded” from joint possession to which they are entitled in law. A Division Bench of this Court in Upendran (supra), while dealing with a similar question, observed thus: “16...........Therefore unless the averments in plaint read as a whole gives an indication that the plaintiff had been excluded from possession, S.37(1) would apply, whereas when plaint clearly avers joint possession as a co-owner, S.37(2) applies. In Thankamma v. Unniamma Antharjanam, 1964 KHC 143 : 1964 KLT 529 : 1964 KLJ 546 : ILR 1964 (1) Ker. In Thankamma v. Unniamma Antharjanam, 1964 KHC 143 : 1964 KLT 529 : 1964 KLJ 546 : ILR 1964 (1) Ker. 619 : 1964 (1) KLR 315 , it was held that exclusion from enjoyment of receipt of income is totally different from exclusion from possession. Mere appropriation of profits of the property or even exclusive use or possession of the property by one co-sharer, does not amount in law to 'exclusion' of the other co-sharers from possession. Possession by some of the co-owners and enjoyment of the property by them alone is not sufficient to constitute exclusion from possession of the remaining co-owners. Joint possession within the meaning of S.37(2) does not necessarily mean joint physical possession for all practical purposes. The Court below was therefore justified in rejecting the said plea.” 16. Another Division Bench of this Court in E. P. Muthu Rowther v. Muhammed Ali Rowther (1970 KHC 201), held that mere appropriation of the profits of the property or even exclusive use or possession of the property by one co-sharer, does not amount to "exclusion” of other co-sharers from possession, for which an intention on the part of the co-sharer to keep the others out of possession, such intention manifesting itself in some manner and to the knowledge of the others, is an essential element. The Division Bench, relying on Abdul Ratheef v. Musthaf Ali (1959 KHC 81), held that it is elementary that the possession of joint property by one co-sharer is possession on behalf of all the co-sharers, in the absence of ouster. 17. In the present case, on a reading of the plaint I do not find that the plaintiff has been excluded from possession. I am of the considered view that the finding of the Trial Court that the relief in the suit falls under Section 50 of the Act is liable to be set aside as relief (a) specifically is a relief of declaration. 18. The learned counsel for the plaintiff submitted that the plaintiff intends to file an application to amend the plaint. The plaintiff is at liberty to incorporate amendments in the plaint. The impugned order stands set aside. The Trial Court is directed to proceed further in accordance with law. If the plaintiff makes an application seeking amendments in the plaint, the Court below shall consider the same in accordance with law. 19. The plaintiff is at liberty to incorporate amendments in the plaint. The impugned order stands set aside. The Trial Court is directed to proceed further in accordance with law. If the plaintiff makes an application seeking amendments in the plaint, the Court below shall consider the same in accordance with law. 19. The Original Petition (Civil) stands disposed of as above. Before parting with the matter, this Court places on record its profound appreciation to the learned counsel Sri.D.Kishore, for his valuable assistance as Amicus Curiae.