ORDER
Chandrakantharaj Urs, J.
1. This appeal is directed against the judgment and Decree dt. 5-10-1985 in O.S. No. 27 of 1984 on the file of the learned Civil Judge,Chickmagalur. The order-judgment and decree is made under O. VII R. 1 l(b) of the C.P.C. for non-compliance with direction of the Court on issue No. 1 framed in the suit. A revision was preferred against the finding recorded on that issue No. 1, which was tried as preliminary issue, under S. 115 of the C.P.C. in C.R.P. No. 1139 of 1986 on the file of this Court. On 19-3-1986, this Court admitted the Revision Petition and directed emergent notice and also directed stay of further proceedings. Even before the Revision Petition was admitted and interim stay granted, the plaint had been rejected as earlier narrated. In the result this Court in C.R.P. made an order on 13-7-1987 directing the Revision Petition to be posted along with Regular First Appeal No. 702 of 1986, which had since been filed in this Court and with which we are now seized.
2. The facts in the case may be briefly stated and they are as follows :--
Plaintiffs numbering 11 filed O.S. 27 of 1984 seeking partition of suit schedule properties as well as for a declaration that certain alienations made by the defendants in respect of joint family properties are not binding on them. In such circumstances, the suit was valued by the plaintiffs under S. 35(2) of the Karnataka Court Fees and Suits Valuation Act (in short 'the Act') in respect of suit schedule item No. 1 property and in regard to suit schedule item No. 2, it was valued under S. 7(2)(d) of the Act and court fee paid accordingly. Defendants while resisting the suit inter alia contended that plaintiffs not being in possession of suit schedule item No. 1 since 1946, did not value the same in terms of sub-sec. (1) of S. 35 of the Act, but the same should have been valued under S. 35(1) as they were out of possession of property in question. It was in the light of that defence taken, the first issue was framed, as follows :--
'Whether the suit is properly valued for purpose of Court fee and jurisdiction?'
As facts were not in dispute, arguments were heard on that issue and Court came to the conclusion that while the plaintiffs had valued properly the suit in regard to suit items1 and 3, nevertheless came to the conclusion that as they were out of possession of suit schedule item No. 1, the joint family residential house, they ought to have valued under sub-sec. (1) of S. 35 of the Act and therefore, fixed the value at Rs. 1,00,000/- as the value of suit item No. 3 movables and item No. I at Rs. 4,00,000/-; the total value of items 1 and 3 to be Rs. 5,00,000/-. Therefore, the 1/5th share claimed tiy the plaintiffs was valued at Rs. 1,00,000/- for the purpose of Court fee and direction was issued to pay the deficit Court fee. That having not been paid, in the circumstances stated earlier, the plaint came to be rejected. These facts are not in dispute.
3. The learned Counsel for the plaintiffs as well as defendants have been heard. What falls for determination by us is whether the loss of possession by plaintiffs not being in occupation of the premises suit schedule item No. 1 since 1946 and not being in possession of movables which were certainly with the defendants, made it necessary for the plaintiffs to value the suit under sub-sec. (1) of S. 35 as a suit for possession for immovable or movable property? It was disputed by the defendants that all items in suit schedule properties were joint family properties. Whether they were of they were not, were questions which had to be decided in the suit on the pleadings and evidence. The trial Court came to the conclusion that since none of the plaintiffs had possession of suit items 1 and 3, they should seek relief for possession and thereby the trial Court ignored the well recognised principle that possession of properties movable or immovable by one of the owners, whether it be as a member of the undivided joint Hindu family or a joint family or as tenants in common, such possession is possession of all the sharers.
4. That question came up for consideration in CRP 309 of 1987 disposed of on Dec. 2nd, 1988 by one of us. Following the decision of Supreme Court in the case of Neelavathi v. Natarajan : [1980]2SCR307 , concerning S. 37 of the Tamil Nadu Court Fees and Suits Valuation Act, which is in pari materia with S. 35 of the Act, it was held that in apartition suit, plaintiff or plaintiffs was only required to set out the joint family properties in respect of which she or they sought partition and separate possession and pay Court fee in accordance with sub-sec. (2) of S. 35 of the Act. The Supreme Court had expressed the following view in Neelavathi's case : [1980]2SCR307 :
'126. Court fee is payable under S. 37(1), T. N. Act, if the plaintiff is 'excluded' from possession of the joint property. The general principle of law is that in the case of co-owners, possession of one is possession of all unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property is not disputed, the law presumes that he is in joint possession. To apply S. 37(1) there should be a clear and specific averment in the plaint that Plaintiff has been excluded from joint possession. An averment that plaintiff could not remain in joint possession would not amount to exclusion from possession.'
5. Further one of us in the said revision expressed the view that in partition suits, at the time of final decree proceedings, each sharer is taxed according to the value of the property that is allotted to his share and therefore there would be no loss to the exchequer and as such where there was specific pleading by the plaintiffs for partition of joint family properties, normally they should not be excluded on plea of improper valuation of the suit schedule properties in the written statement.
6. We also take support from the decision of the Supreme Court in the case of M,'s. Commercial Aviation and Travel Company v. Mrs. Vimla Pannalal, : AIR1988SC1636 . In the latter mentioned case' of the Supreme Court, Court Fees Act of the Union territory of Delhi fell for consideration. The question for consideration was the correctness of valuation as in the case of partition, so also inthe case of suit for accounts, allegations of the plaint form the basis on which the suit valuation must be accepted for the purpose of court fee and jurisdiction.
7. One of us relied upon that principle while disposing of C.R.P. 985 of 1988 on 6-10-1988, (reported in ILR (1989) Kant 1249). Therefore, on the facts of this case, we have no hesitation to come to the conclusion applying the ratio of the decisions of Supreme Court to which we have made reference and set aside the order under appeal and direct the learned Civil Judge, Chickmagalur to take back the plaint and continue the proceedings holding issue No. 1 in favour of the plaintiffs and proceed with the case on merits subject to adjustment of Court fee in the final decree proceedings.
8. Accordingly, the appeal is allowed. We have doubt whether we should dispose of the C.R.P. 1139 of 1986 which has not been referred to us under S. 9 of the Karnataka High Court Act, but merely directed to be posted along with this appeal. We therefore think it proper that the Revision Petition may be posted forthwith before the appropriate Bench for formal orders in the light of judgment we have rendered in this appeal.
9. In the circumstances of the case, there will be no order as to costs.
10. Appeal allowed.