Full Judgment
A. Gopal Reddy, J.
1. The plaintiff, who is the revision petitioner herein, filed the revision under Article 227 of the Constitution of India against the docket Order dated 15-2-2005 passed in O.S. SR.No. 745 of 2005 by the learned Principal District Judge, Ranga Reddy District, returning the plaint for payment of court fee under Section 34(1) of the A.P. Court Fees and Suits Valuation Act (for short 'the Act').
2. The plaintiff instituted the above suit for partition and separate possession of the suit schedule property and for allotment of 1/2 share (1/3rd share and 1/2 of 1/3rd share Mr. C. Ramachandraiah). While numbering the suit, the office of the lower Court took an objection as to the maintainability of the suit since as per the pahanies and pattedar passbook filed along with the plaint, the partition of the suit schedule property was already effected, and accordingly, called for an explanation from the plaintiff as to how she constitutes joint possession by returning the plaint. The same was re-presented to the Court by citing judgment of this Court in Charlapalli Yadamma v. Miryala Gopaiah and Anr., : 2003(5)ALD753 and R. V. Bhuvaneswari and Ors. v. Ponnuboina Chenchu Ramaiah and Ors., : 2004(1)ALD539 . When the matter was put up before the Court, the learned Judge returned the same for payment of deficit Court fee under Section 34(1) of the Act.
3. The pahanies and pattedar passbook, which were filed along with the plaint, did not indicate any prior partition though the names were recorded separately to the various extents of land in the revenue records. The lower Court for collection of court fee has to see the averments made in the plaint, wherein it was stated that there was no prior partition of suit schedule property, which is in joint possession. On defendant's appearance, if any plea is taken that there was an earlier partition, it is always open for the Court, during the course of trial, to insist for payment of necessary court fee after framing an appropriate issue to the said effect but the plaint cannot be returned at the initial stage on the presumption that the pahanies and pattedar passbook were issued on the basis of a prior partition.
4. For the aforesaid reasons, the impugned docket Order passed by the lower Court is hereby set aside. However, the lower Court is directed to receive the plaint, number it, if it is otherwise in order, and proceed according to law.
5. The Civil Revision Petition is accordingly allowed. There shall be no Order as to costs.