R.V. Bhuvaneswari and ors. Vs. Ponnuboina Chencu Ramaiah (Died) and ors. - Court Judgment

Excerpt:
.....and petitioner directed to pay additional fee adjudged - petitioner at time of filing suit was in joint possession of disputed property - held, fee would be charged in accordance with section 34 (2) and not with section 34 (1). - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the..........sold some of the plaint schedule properties to d-7. therefore, the plaintiffs are not entitled to joint possession and enjoyment of such portion of the schedule property and thus the plaintiff's are liable to pay court fee under section 34(1) of a.p. court fees and suit valuation act, 1956 (for short 'the act').2. on the office check slip, the learned senior civil judge, kavali, made an order on 1.11.2002, directing the petitioners herein to pay the deficit court fee by 21.11.2002. questioning the said order this civil revision petition is filed.3. this being the matter between the court and the plaintiff's, i am of the view that the civil revision petition can be disposed of without hearing the respondents.4. i perused the para 11 of copy of the plaint, wherein, it is stated by the.....

Judgment:
ORDER

V. Eswaraiah, J.

1. The petitioners herein are the plaintiffs. They filed the suit O.S. No. 63 of 2001 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, in the said O.S. No. 63 of 2001 putup 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 D-7. Therefore, the plaintiffs are not entitled to joint possession and enjoyment of such portion of the schedule property and thus the plaintiff's are liable to pay Court fee under Section 34(1) of A.P. Court Fees and Suit Valuation Act, 1956 (for short 'the Act').

2. On the office check slip, the learned Senior Civil Judge, Kavali, made an order on 1.11.2002, directing the petitioners herein to pay the deficit Court fee by 21.11.2002. Questioning the said order this Civil Revision Petition is filed.

3. This being the matter between the Court and the plaintiff's, I am of the view that the Civil Revision Petition can be disposed of without hearing the respondents.

4. I perused the para 11 of copy of the plaint, wherein, it is stated by the plaintiff's that they came to learn that the defendants 1 to 4 brought into existence a registered sale deed dated 7.9.2000 in favour of the 7th defendant purporting to sell the extent of Ac.25.00 cents of the land comprised in Survey Nos. 485, 486, 487, 1040 and 1041, which is part and parcel of the plaint schedule property without division or consent or knowledge of the plaintiff's and other co-sharers. The registration extract of the said sale deed dated 7.9.2000 is also filed. It is stated that the sale deed is sham and nominal and the same will not affect the rights of the plaintiff's or any other co-sharers. The plaintiff's further submitted that defendants 1 to 4 have no right to alienate the joint family property without there being any division and since sale deed is sham and nominal, the plaintiff's are entitled to ignore the same. It is further asserted that all the co-sharers are in joint possession of the property.

5. Under Section 34(1) of the Act, in a suit for partition, where the plaintiff's 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 3/4th 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 as per Section 34(1) of the Act. It is specifically asserted by the plaintiff's 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, the Section 34(1) has no application.

6. Under Section 34(2), in a suit for partition where the plaintiffs are seeking partition of suit and separate possession of the joint family properties, and if the plaintiff's are in joint possession of such property, the Court fee payable in respect of the suit for partition, where the value is over and above Rs. 10,000/-, is only Rs. 200/-. In the instant case, the plaintiff's have asserted that they are in joint possession of the properties sold by the Defendants 1 to 4 in favour of the 7th defendant. Therefore, the Court fee payable by them is only Rs. 200/-, 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.

7. Therefore, I am of the opinion that, the Court below is not right in directing the plaintiff's to pay the Court fee under Section 34(1) of the Act. Accordingly, the order of the Court below is set aside and the civil revision petition is allowed. The Trial Court may proceed with the trial of the suit in accordance with law.