ORDER
1. The appellant herein filed a suit for partition and separate possession of one-fifth share in the plaint schedule properties and consequential reliefs in O.S. No. 41 of 1992, on the file of the Civil Judge, Bhadravati. The plaintiff valued the suit for partition for the purpose of jurisdiction as Rs. 15 lakhs and valued of his one-fifth share as Rs. 3 lakhs. Plaintiff claimed that he was in joint possession of the suit properties, and paid a fixed Court fee of Rs. 200/- under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short, the 'Act'). He also paid additional Court fee of Rs. 100.00 in regard to the consequential relief of permanent injunction under Section 26(c) of the Act. In para 9 of the plaint, the plaintiff averred thus:
'.....The plaintiff used to visit the native place frequently and looked after the schedule properties and in joint possession of the said properties. Plaintiff is the joint owner of all the properties morefully described in 'A', 'B', 'C', 'D' and 'E' Schedules and has got absolute right interest and title over the properties as his birth-right'.
2. The defendants resisted the said suit, inter alia, contending that the properties described in 'B' to 'E' Schedules were not joint family properties and the plaintiff had separated from the family in the year 1974 by taking 'A' Schedule properties to his share and that the properties described in 'B' to 'E' Schedules were the self-acquired properties of the first defendant. They also contended that the suit was not properly valued and the Court fee paid was insufficient.
3. After trial, the Trial Court held that the properties described in 'B' to 'E' Schedules were the self-acquired properties of first defendant and were not joint family properties and that the plaintiff had separated from the family in the year 1974 by taking 'A' Schedule properties to his share. The Trial Court also held that the Court fee paid was not proper. The Court below held that as the plaintiff had valued the share at Rs. Three lakhs, he was liable to pay the ad valorem Court fee on Rs. Three lakhs under Section 35(1) of the Act. The Trial Court held that the plaintiff was in exclusive possession of 'A' Schedule properties and he was not in either constructive or joint possession of 'B' to 'E' Schedule properties. Consequently, the Trial Court dismissed the suit with costs, by a judgment and decree dated 26-3-1994, with the following directions regarding Court fee:
'The plaintiff is hereby directed to pay Court fee under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act as amended, over his alleged 1/5th share namely on Rs. 3,00,000 less Rs. 200, Court fee already paid, within two weeks from today and failing which the suit is also deemed to be automatically dismissed or plaint is rejected for non-compliance'.
As the plaintiff did not pay the Court, fee under Section 35(1) of the Act. as directed by the Trial Court, the suit was also dismissed on the ground of non-compliance of Court Order to pay deficit Court fee under Section 35(1) of the Act.
4. Feeling aggrieved, the plaintiff has filed this appeal, challenging the dismissal of the suit on merits as also the decision of the Trial Court that Court fee is payable by him on a value of Rs. 3,00,000/- under Section 35(1) of the Act and dismissing the suit also for non-payment of such Court fee. The appellant-plaintiff has paid a Court fee of Rs. 200.00 on the appeal, under Section 49 of the Act. The appellant also filed an application for stay of the judgment and decree of the Trial Court insofar as it relates to compensatory costs and payment of Court fee. By order dated 27-7-1994, the learned Additional Government Advocate was directed to take notice for the State, as question of Court fee was involved, and the decree of the Trial Court insofar as the payment of Court fee was concerned was stayed. Subsequently, on 12-1-1998, the appeal was admitted.
5. Thereafter, on 16-3-2000, the defendants-respondents have filed an application under Section 1 l(4)(a) of the Act, to determine the Court fee payable on the memorandum of appeal. Learned Counsel for respondents contended that where the Trial Court has held that ad valorem Court fee is payable under Section 35(1) of the Act, the following procedure ought to have been followed even before admitting the appeal:
(a) Require the plaintiff to pay ad valorem Court fee on the value of Rs. Three lakhs under Section 35(1) of the Act (less Rs. 200.00 paid on the plaint); and
(b) Require the plaintiff-appellant to pay ad valorem Court fee on Rs. Three lakhs (equal to the Court fee payable in theTrial Court under Section 35(1) of the Act) on the Memorandum of Appeal, under Section 49 of the Act.
6. In support of their contentions, the respondents relied on the decision of Allahabad High Court in Onkar Mal v Ram Sarup and the decision of the Oudh Court in Muneskwar Baksh and Another v Hara Prasad and Others .
6.1 In Onkar Mal's case, supra, a Full Bench of Allahabad High Court was considering, in a second appeal, Section 7(vi-A) of the Court Fee Act, 1870, as amended in Uttar Pradesh, extracted below:
'(vi-A) In suits for partition ... according to one quarter of the value of the plaintiffs share of the property, and 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 coparcener or co-owner, and his claim to be a coparcener or co-owner on such date is denied'.
In that case, the plaintiff brought a suit for partition alleging joint possession and Court fee was paid on one quarter of the value of the share in accordance with first part of Section 7(vi-A). The defendants denied the plaintiffs possession and title. Appropriate issue was framed and on evidence, it was found that the plaintiff was not in possession. The Trial Court did not demand Court fee upon the full value of the share in accordance with the second part of Section 7(vi-A), before pronouncing the final order, but dismissed the suit. The first appeal by plaintiff was also dismissed. In the second appeal filed by the plaintiffs, the question of Court fee was raised. The Full Bench held that having regard to the finding of two Courts below that the plaintiffs were out of possession as on the date when they brought the suit, Court fee ought to have been levied on the full value of the share claimed. The Court held that realisation of deficiency in Court fee could not be postponed on the ground that the question whether the plaintiff was in joint possession or was not is to be decided in the appeal. The Court observed:
'To enable the Court to consider the appeal on merits the memorandum of appeal must be a document which was properly stamped. The question whether a memorandum of appeal was properly stamped or not must be decided first before the appellant could claim a hearing on merits. ..... The question of Court feetherefore had to be decided on the basis of facts, as they stood at the time when the memorandum of appeal was filed in the Court. The decision of the two Courts below that the plaintiffs were never in joint possession must be accepted as correct for levying the proper Court fee. ...... The report relating to deficiency is correctand the deficiency must be made good first before the memorandum of appeal can be admitted. . . . Therefore, though the Courtfee must initially be accepted as correct according to the allega-tions made by the plaintiff in the plaint, the Court is required to revise its opinion and ask for the requisite Court fee under the second part of the clause on coming to the view that the plaintiff is out of possession of the property and that his claim to be a coparcener or co-owner is denied. The general rule of ascertaining the valuation, for purposes of Court fee from the allegations and prayers in the plaint must therefore, in such cases, be modified.....'.
The full Court also examined the principle that the Court must base its decision as to the Court fee payable on the averments and prayer in the plaint, and held thus:
'The general rule that the Court must base its decision as to the Court fee payable on the allegations and prayers in the plaint is correct only to this extent that the general rule is invoked primarily for the purposes of classification of suit; in other words, in order to find out the nature of the suit and the category it belongs to, the Court must examine the allegations and reliefs claimed in the suit for the simple reason that it is the allegations made in the plaint which determine the nature of the suit. In making this classification about the category of the suit it is not permissible to call in aid the allegations made in the written statement'.
'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 Court Fees Act. This process also involves the examination of the plaint allegations and, if there is nothing to indicate otherwise, the plaintiffs valuation 'prima facie' is accepted as correct. Ordinarily, the Court would accept Court fees paid in the first instance as correct, but if it transpires subsequently that an allegation of fact on the basis of which the Court fee was computed is not correct, then it is within the power of the Court to demand additional Court fee before the judgment is pronounced'.
'Coming to the case before us, the allegations in the plaint show that it is a partition suit which is governed by sub-section (vi-A) of Section 7, Court Fees Act for computing the proper Court fee. The Court fees paid by the plaintiffs was accepted as correct because the plaintiffs had asserted in the plaint that they were in joint possession of the property to the extent of their share. In the initial stage it could not be said with any certainty whether the allegation was false or correct. The defendants having denied this assertion of the plaintiffs, a specific issue on the question of joint possession of the plaintiffs was framed in the case. The Court, after evidence was gone into, recorded a finding that the plaintiffs were not in the joint possession of the property. In view of this finding it was open to the first Court to demand Court fee under the second part of sub-section (vi-A) of Section 7, Court Fees Act before pronouncing final order in the case'.
6.2 In Muneshwar Baksh's case, supra, the Court rejected a contention that realisation of deficit Court fee on the memorandum of appeal should be postponed, as the question whether the plaintiffs were in possession or not is a matter to be decided in the appeal, on the following reasoning:
'The decision of the lower Court on the question of possession for the purpose of Court fee under the circumstances must be regarded as 'prima facie' correct and appellants must pay the deficiency according to the full value of the share which they claim on partition'.
7. But we find that a different view has been expressed by other Courts. To begin with, we may conveniently refer to two cases decided under the Mysore Court Fees Act, 1900 (the 'old Act' for short). The old Act did not have a provision similar to Section 35 of the present Act dealing exclusively with suits for partition. Under the old Act, a suit for partition by a person claiming to be in joint possession was subjected to Court fee under Article 11(B) of Schedule II, which provides for a fixed Court fee (of Rs. 100.00 when presented to a District Court or sub-Court and Rs. 15/- when presented in the Munsiffs Court) in regard to a plaint or memorandum of appeal where it was not possible to estimate at a money value, the subject-matter in dispute and which was otherwise not provided for in that Act. On the other hand, a suit for partition where the plaintiff was excluded from possession, fell under Section 4(v), which dealt with the suits for possession and provided for payment of Court fee on the value of subject-matter of the suit.
7.1 In Krishnappa v Bhashyam Iyengar , it was held that where the plaintiff claims to be a co-owner/co-sharer/co-tenant/co-parcener in a joint family alleging to be in joint possession of the suit properties, whether constructively or actually, and wants his share to be separated and put into his possession, fixed Court fee under Article 11(B) was sufficient.
7.2 In M. Nagendriah v M, Ramachandriah and Another, a Division Bench of the Mysore High Court considered a situation, similar to that being considered by us. In that case, the plaintiff had valued the suit under Article 11(B) of the Mysore Court Fees Act, 1900 claiming to be in joint possession of several suit properties. The Trial Court found that the plaintiff was in joint possession of only three items of suit properties and passed a decree granting one-third share in those items. The Trial Court found that plaintiff was not in joint possession in regard to other items, and dismissed the suit in regard to those items. The Trial Court also directed the plaintiff to pay Court fee in regard to the suit items which were found to be not in the joint possession of plaintiff. The plaintiff filed an appeal and paid the fixed Court fee under Article 11(B). The office raised an objection regarding sufficiency of Court fee paid, pointing out that though the plaint may be deemed to have been prop-erly stamped when it was filed, as there was now a finding of the lower Court that the plaintiff was not in joint possession of certain items, the plaintiff should pay the Court fee 'ad valorem' in regard to those items, both in appeal before the High Court and Court below, before admitting the appeal as regular appeal. The Division Bench rejected the office objections, in view of the well-settled position that allegations made in the plaint alone had to be looked into for determining the category of suit for purposes of Court fee and the denial of plaint allegations by the defendant does not take the suit out of scope of Article 11(B). The Division Bench held that where a suit for partition has been filed by paying a fixed Court fee on the allegation that the plaintiff is in joint possession, the Court fee payable on the memorandum of appeal also should be the same fixed Court fee, as paid on the plaint irrespective of the fact that the Trial Court had found that the plaintiff is not in possession of some or all of the suit properties. The decision in Nagendriah's case, supra, is directly on the issue and contrary to the view expressed by the Full Bench of Allahabad High Court.
8. Learned Counsel for respondents submitted that the said decision in Nagendriah's case, supra, may not be helpful as the old Act did not have any provision corresponding to Section 35(1) and (2) and Section 11 of the new Act.
8.1 The relevant portions of Section 35 are extracted below:
(i) 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 whose title to such property is denied, or who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiffs share.
(ii) 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.-
. . . Rupees two hundred, if the value is Rs. 10,000 and above.
8.2 A learned Single Judge of this Court in B. Shabeer Ahmed v B. Iqbal Ahmed, considered Section 35 and held that even under the new Act, there is no change in the basic position that the matter has to be decided on the allegations contained in the plaint alone and the valuation slip accompanying the plaint, under Section 10 of the Act, and not with reference to the allegations made in the written statement, even though the averments in the written statement showed that possession of some of the properties were with the alienees. He followed the decision in Nagendriah's case, supra. Dealing with the contention based on Section 11, the learned Single Judge held as follows:
'It is no doubt a fact that there was no provision like Section 11 of the Act in the old Court Fees Act of 1870 (Central) or the MysoreCourt Fees Act of 1900, Section 11(2) says that any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All such questions arising on such pleas shall be heard and decided before evidence is recorded. But, it has to be noted that sub-section (1) of the same section states that in every suit initiated in any Court, the Court shall, before ordering the plaint to be registered, decide on the materials and allegations contained in the plaint and on the materials contained in the statement, if any, filed under Section 10, the proper fee payable thereon and the decision being however subject to review, further review, and correction in the manner specified in the succeeding sub-sections. From this it follows that the Court has got to decide on the materials and allegations contained in the plaint or the statement submitted by the plaintiff along with his plaint under Section 10. It may also be mentioned that under Section 19 of the Act, in any inquiry relating to the fee payable on a plaint, written statement, petition, memorandum of appeal or other document, the Court may, if it considers necessary, give notice to the State Government with a copy of any of the documents aforesaid. It is significant to note that Section 19 states that only a copy of the plaint or other document referred to above should be served on the State Government, there is nowhere a reference to the copy of the written statement filed by the defendant to be so served. This supports the contention that under the Act in an inquiry as to the fee payable on the plaint, only the materials and allegations contained in the plaint are to be taken into account by the Court in deciding the said question'.
The learned Judge also cited with approval, the following passage from Guide to Law of Court by K. Krishnamurthy and R. Mathrubutham (1st Edition, page 130):
'Though sub-section (2) of Section 11 gives a statutory right to the defendant to raise objections to the adequacy of the Court fee paid by the plaintiff, the field of the investigation is confined practically to the determination of two points, viz., under-estimation of the value of the subject-matter of the suit and the category under which it should fall for the purpose of Court fee. The section cannot be read as enabling the defendant, to challenge the plaint allegations for the purpose of determining the proper Court fee. It is settled law that the allegations in the plaint alone are to be considered and not the statements made by the defendant in the written statement and the Act makes no change in this, But the Courts are entitled to determine the substance of the claim as distinguished from the form in which the reliefs were cast. The scope of investigation or inquiry under Section 11 after notice to defendant and on hearing his objection if any is limited to determining the nature of the suit on the basis of the plaint allegations and to see if there is any under-valuation of the subject-matter of the suit. Under the pretext of deciding questions of Court fee there cannot be a trial of the suit......'.
8.3 In Channiah v B.K. Marulasiddappa, construing the provisions of the new Court Fees Act, this Court held:
'There is no doubt that the word 'plaint' is not mentioned in Section 35(1) but there is no reference therein to the pleadings of the defendant either, Merely because the expression 'denied' is used in sub-section (1) of Section 35 there is no justification to say that the 'denial' of the title contemplates denial in the written statement of the defendant. It is reasonable to construe the expression 'denied' used in sub-section (1) of Section 35 of the Act as denial of plaintiffs' title before the institution of the suit. Therefore, the true meaning to be attached to the words 'whose title to such property is denied' is that whose title to such property is denied prior to the institution of the suit or filing of the plaint. That being so, it is only the allegations in the plaint that will have to be looked into. Therefore, there is no valid reason to deviate from the fairly well-settled principle laid down by decisions that it is the allegation in the plaint that has to be looked into'.
8.4 Thus we find that the decision in Nagendriah's case, supra, has been consistently followed even after the new Act came into force.
9. It is also useful to refer to a few decisions of other High Courts onthis aspect.
9.1 In C.R. Ramaswami Ayyangar v C.S. Rangachariar , a Full Bench of the Madras High Court considered the provisions of Article 17(vi) of Schedule II and Section 7(iv)(b) of the Court Fee Act, 1870. It was held that the joint owner who is in possession does not need to sue for possession and the fact that his possession is shared by others does not affect his possession. It was further held that Section 7(v) will apply only where the plaintiff is seeking relief of possession by stating that he is out of possession.
9.2 In Premanand v Dhirendranath Ganguly, a Division Bench of the Calcutta High Court held as follows:
'The question as to what Court fee are payable on a plaint has to be decided on the allegation in the plaint and the nature of relief claimed. Whatever may transpire in the evidence, the plaint remains the same until and unless amended..... If and when aCourt comes to the conclusion that allegation of joint possession in the plaint is not borne out by the evidence, the obvious result would be that the plaintiffs suit would fail unless the petition is suitably amended and further Court fee paid'.
It was held that where a fixed Court fee is paid in a suit for partition on the allegation of joint possession, ad valorem Court fee will not be payable on the value of the property on the ground that the evidence showed that the plaintiff was not in possession.
10. The above decisions show the settled position that insofar as suits for partition are concerned, the matter will have to be decided with reference to the plaint allegations alone. The controversy is also set at rest by two decisions of the Supreme Court.
10.1 In Sathappa Chettiar v Ramanathan Chettiar , a Constitution Bench of the Supreme Court has made it clear that the question of Court fees must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. The Supreme Court has also explained the reason for the legislature prescribing either a fixed Court fee or a Court fee on the basis of plaintiffs valuation of the relief, as follows:
'.....The theoretical basis' of this provision appears to be that incases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim with any precision or definiteness. Take for instance the claim for partition where the plaintiff seeks to enforce his right to share in any property on the ground that it is joint family property. The basis of the claim is that the property in respect of which a share is claimed is joint family property. In other words, it is property in which the plaintiff has an undivided share. What the plaintiff purports to do by making a claim for partition is to ask the Court to give him certain specified properties separately and absolutely on his own account for his share in lieu of his undivided share in the whole property. Now it would be clear that the conversion of the plaintiffs alleged undivided share in the joint family property into his separate share cannot be easily in terms of rupees with any precision or definiteness.....'.
10.2 In Neelavathi v N. Natarajan , the Supreme Court was considering Section 37(1) and (2) of the Tamil Nadu Court Fee and Suits Valuation Act, 1955, somewhat similar to Section 35(1) and (2) of the Karnataka Act. The Supreme Court, reiterated the principle in Sathappa Chettiar's case, supra, and held that it is settled law that the question of Court fee must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. Further, interpreting the words 'excluded from possession' in Section 37(1) of the Tamil Nadu Act (which corresponds to Section 35(1) of the Karnataka Act) the Supreme Court observed thus:
'The general principle of law is that in the case of co-owners, the possession of one is in law 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 as joint is not disputed, the law presumes that he is in joint possession unless he is excluded from such possession. Before 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 to in law....'.
(emphasis supplied)
As it was not unable to read into the plaint, a clear and specific admission that plaintiffs had been excluded from possession, the Supreme Court held that the direction by Trial Court to the plaintiffs to pay Court fee under Section 37(1) of the Tamil Nadu Court Fees Act was erroneous;.
10.3 In view of the decisions of the Supreme Court, it has to he held that the views expressed by the Full Bench of Allahabad High Court in the case of Onkar Mal, supra, and Oudh High Court in Muneshwar Baksh's case, supra, are not good law.
11. If the plaintiff claims to be in joint possession (either constructive or actual) and files a suit for partition and separate possession, he has to pay the Court fee only under Section 35(2) of the Act. In such a suit, the plaintiff will be entitled to relief, only if the Court accepts his contention that he is in joint possession (either constructive or actual). On the other hand, if the Court finds that he is not in possession or joint possession [either constructive or actual] or if the Court finds that he has been excluded or ousted from possession, the relief will be denied. But the plaintiff cannot be required to pay Court fee in such a situation. If the Court finds that some of the properties in the plaint schedule are in the possession or joint possession of the plaintiff, and others are not, the Court will give relief only in regard to those properties which are found to be in possession or joint possession of the plaintiff and not in regard to those from which plaintiff had been excluded or ousted. The Court cannot, either at the instance of defendant, or suo motu, convert the suit as one under Section 35(1) on the basis of defendant's pleadings or evidence. We may illustrate by an example. When a suit is filed by a plaintiff for a bare injunction alleging that he is in possession and pays Court fee under Section 26(c) of the Act, and if defendant denies such possession and established that he (the defendant) has always been in possession, the Court will dismiss the suit for injunction. It will not and cannot hold that it is a suit for possession and consequential injunction and call upon plaintiff to pay Court fee under Section 24(a) or 28 or 29 of the Act.
12. We may now conveniently summarise the principles relating to Court fee in regard to suits for partitions and appeals therefrom:
(i) Payment of Court fee will depend on plaint averment alone. Neither the averments in the written statement, nor the evidence nor the final decision have a bearing on the decision relating to Court fee.
(ii) The scope of investigation under Section 11 is confined practically to determine two points: (i) Undervaluation of the subject-matter of the suit; and (ii) category under which the suit falls, for the purpose of Court fee. Once the category of suit is determined with reference to plaint averments, the Court cannot subsequently change the category on the basis of the averments in the written statement or on the basis of evidence and arguments. In short, if the suit is found to fall under Section 35(2) of the Act on the plaint averments, the Court has no power to convert the suit as one falling under Section 35(1) of the Act, at any point of time, much less while rendering judgment. The only exception is when the plaint is amended.
(iii) The plaintiff in a suit being dominus litis has the choice of filing a suit of a particular nature or seek a particular relief. Neither the defendant nor the Court can alter the suit as one for a different reliefer as a suit falling in a different category and require the plaintiff to pay Court fee on such altered category of suit.
(iv) If the plaintiff claims that he is in joint possession of a property and seeks partition and separate possession, he categorises the suit under Section 35(2) of the Act. He is therefore liable to pay Court fee only under Section 35(2). If on evidence, it is found that he was not in joint possession, the consequence is that the relief may be refused in regard to such property or the suit may be dismissed. But the question of Court treating the suit as one falling under Section 35(1) of the Act and directing the plaintiff to pay the Court fee under Section 35(1) of the Act does not arise. Even after written statement and evidence (which may demonstrate absence of possession or joint possession), if the plaintiff chooses not to amend the plaint to bring the suit under Section 35(1) and pay Court fee applicable thereto, he takes the chance of suit getting dismissed or relief being denied.
(v) On appreciation of evidence, if the Court disbelieves the claim of plaintiff regarding joint possession, it can only hold that the case does not fall under Section 35(2) and therefore plaintiff is not entitled to relief. It cannot, in the judgment, hold that the case of plaintiff should be categorised under Section 35(1) nor direct the plaintiff to pay Court fee on market value under Section 35(1) of the Act.
(vi) The Court fee payable on an appeal is the same as the Court fee payable on the suit. Therefore, even if the Trial Court holds that plaintiff was not in joint possession or that plaintiff had been excluded from possession, there will he no change in the Court fee payable in an appeal by the plaintiff against such decision. The Court fee on the appeal will still be the same as the Court fee paid on the plaint in the Court of first instance.
13. Hence, Court fee paid on the appeal is proper. Hence, there is no merit in the application (LA. No. II) filed by the respondents and the same is accordingly rejected.