ORDER
R.L. Khurana, J.
1. This revision petition has been directed against the order dated 23-10-2000 of the learned District Judge, Mandi, holding that the suit filed by the petitioners (plaintiffs) has not been properly valued for the purposes of Court-fee and jurisdiction and that he has no pecuniaiy jurisdiction to try the suit. It was further held that the petitioners were required to pay the ad valorem Court-fee on Rs. 25,86,240/- being the market value of their shares in the immovable properties, the partition of which is being sought.
2. The petitioners and respondents Nos. 1 to 3 are the sons and daughters of one Ram Rakha Kaushal of Sarkaghat in District Mandi. The said Ram Rakha has died on 12-8-1983 leaving behind the petitioners and respondents Nos. 1 to 3 as his only legal heirs. Ram Rakha owned immovable properties, detailed in para 3 of the plaint, which have devolved upon the petitioners and respondents No. 1 to 3 in equal shares, that is, to the extent of 1/8th share each. Besides, the said Ram Rakha was running a business under the name and style of Messrs Ram Rakha Mall Kaushal and sons at Sarkaghat.
3. The petitioners have filed a suit for partition of the Immovable properties left by the deceased Ram Rakha claiming 5/8th share therein on the ground that such properties are joint Hindu family properties consisting of the deceased Ram Rakha, petitioners and respondents Nos. 1 to 3. They also sought rendition of accounts of the firm Messrs Ram Rakha Mall Kaushal and Sons by averring that such firm was also a joint Hindu family concern of which the deceased Ram Rakha was the Karta and since after his death, respondent No. ) is the Karta.
4. Vide para 9 of the plaint, the suit has been valued by the petitioners for the purpose of Jurisdiction and court-lee as under :--
'9. That the value of the suit for the purpose of court-fees and jurisdiction is fixed at Rs. 3 lakh being the value of the share of the plaintiffs which is being partitioned. However, the fixed court-fees of Rs. 19.50 is being fixed as fixed Court-fee is payable. The 'value of the suit for the purpose of rendi-tion of accounts is fixed at Rs. 2,000/- on which a Court-fee of Rs. 272/- is being affixed. The plaintiff tentatively value the relief of rendition of account at Rs. 2,000/-though a much higher amount will be payable and the plaintiffs shall fix the Court-fees when the amount is ascertained. The total value for the purpose of jurisdiction is fixed at Rs. 32000/- and total Court-fee fixed is Rs. 292.50.'
5. The above valuation of the suit was objected to by the respondents while resisting and contesting the suit. On the basis of such objection. Issue No. 8 was framed in the case to the following effect :--
'Whether suit has not been properly valued for the purposes of Court-fee and jurisdiction If so, whet is the correct valuation?
6. Vide the impugned order the learned District Judge has decided the above issue, which was taken up as a preliminary issue, in favour of the respondents. The learned District Judge came to the conclusion that the suit, insofar as the relief of partition of immovable properties is concerned, has not been properly valued for the purposes of Court-fee and jurisdiction. It was held that the market value of the entire properties, subject-matter of the suit, was more than Rs. 41,00,000/-. Keeping in view the shares of the petitioners, which are to the extent of 5/8, the suit was required to be valued for the purposes of Court-fee and jurisdiction at Rs. 25,86,240/- representing the value of the properties to the extent of the shares of the petitioners and that requisite Court-fee on such amount was required to be paid. Further after holding that he has no pecuniary original jurisdiction in the case, the learned District Judge has transmitted the record of the suit to this Court since the same was originally instituted before this Court and was transferred to the learned District Judge vide order dated 8-3-1995.
7. Feeling aggrieved, the petitioners are before this Court by way of the present revision petition assailing the order dated 23-10-2000 of the learned District Judge. It has been contended that under the law, the disclosure of valuation of the suit is in the absolute discretion or option of the plaintiff. It is a matter between the plaintiff and the State. Therefore, a defendant cannot raise any objection to such valuation. It hasfurther been contended that the valuation of the suit is to be determined only on the basis of the averments made in the plaint. The averments made by the defendant(s) in the written statement cannot be looked into for the purpose of determination of the valuation of suit. It was further contended that in the present case, which is governed by Article 13(iv) of the Second Schedule, of the H. P. Court-fees Act, 1968, a fixed court-fee of Rs. 19.50 paise is payable, which Court-fee stands affixed on the plaint.
8. The learned counsel for the defendants, on the other hand, has contended that though under the law the plaintiff has a right to value the suit according to his own estimate, he has no absolute right or option to place any valuation whatever in such relief. It has also been contended that since the District Judge is exercising limited original pecuniary Jurisdiction, the question of valuation would go to the root of the jurisdiction of the Court, therefore, the defendants have every right to question the valuation of the suit put forth by the plaintiff. Further contention raised by the learned counsel for the defendants is that the present suit, Insofar as it relates to the relief of partition of the immovable property by enforcement of a right to share in joint family property, falls within the ambit of Section 7(iv)(b) of the H. P. Court-fees Act, 1968 and ad valorem Court-fee is payable on the market value of the properties involved to the extent of the shares claimed.
9. The Hon'ble Supreme Court in Abdul Hamid Shamsi v. Abdul Majid, (1988) 2 SCC 575 : (AIR 1988 SC 1150), while upholding the right of the plaintiff to value the suit according to his own estimate, has held that the plaintiff has not been given absolute right or option to place any valuation whatever. It was further held that in case of limited pecuniary jurisdiction, the defendant could object to the valuation put forth by the plaintiff, as arbitrary under valuation could result in rejection of the plaint.
10. Dealing with the question of valuation of suit for accounting or dissolution of partnership and accounting filed in the Courts of limited pecuniary jurisdiction, the Hon'ble Supreme Court in Sujir Keshav Nayakv. Sujir Ganesh Nayak, (1992) 1 SCC 731 : (AIR 1992 SC 1526 at p. 1529) has held :
'.....It can thus be resolved thatin suits for accounting or for dissolution of partnership and accounting filed in Courts of limited pecuniary jurisdiction the plaintiff must take every care to disclose valuation which is not arbitrary as the plaint is liable to be rejected on objection of the defendant. But in suits of such nature filed before Courts of unlimited jurisdiction the valuation disclosed by the plaintiff may be accepted as correct. This, however, does not mean that the Court's power to examine the correctness of valuation is taken away, if on perusal of plaint the Court is prima facie satisfied that the plaintiff has not been fair and valued the suit or relief arbitrarily it is not precluded from directing the plaintiff to value it properly and pay court-fee on it.'
The Hon'ble Supreme Court' laid down the law as under (at p. 1528 of AIR) :
'(1) Where the question of court-fee is linked with jurisdiction a defendant has a right to raise objection and the Court should decide it as a preliminary Issue.
(2) But in those cases where the suit is filed in Court of unlimited jurisdiction the valuation disclosed by the plaintiff or payment of amount of court-fee on relief claimed in plaint or memorandum of appeal should be taken as correct.
(3) This does not preclude the Court even in suits filed in Courts of unlimited jurisdiction from examining if the valuation, on averments in plaint is arbitrary.'
11. The dispute in the present case pertains to the valuation of the suit insofar as the relief of partition of immovable properties by enforcement of a right to share in the joint family property is concerned. The short question, therefore, which calls for decision in the present revision petition is whether fixed court-fees under Art. 13(iv) of the Second Schedule of H. P. Court-fees Act, 1968 (as paid by the petitioners) or ad valorem court-fee on the market value of the properties to the extent of share(s) claimed under Section 7(iv)(b) of the said Act (as directed by the learned District Judge) is payable on the plaint of the suit filed by the petitioners.
12. It is well settled that for deciding the question relating to the amount of court-fee payable on the plaint, not only have the averments in the plaint alone to be taken into account but such averments are to be as-sumed as correct. Decision on the court-fee payable on a plaint can neither depend on the pleas raised in defence nor on the maintainability of the suit as framed or even upon the assumption that the Court must somehow spell out of the plaint such a claim which is ultimately capable of being decreed. These things are of no concern to the Court deciding a dispute as to the provision of the Court-fees Act, under which a plaint is taxable with fee. The Court has to take the plaint as it is without omitting anything material therefrom and without reading into it by implication what is not stated therein., (See : Neelavathi v. N. Natarajan, AIR 1980 SC 691).
13. The petitioners and respondent Nos. 1 to 3 are the descendants of the deceased Ram Rakha. The partition, by enforcement of a right to share in the joint family property, is being claimed in respect of the following properties (as detailed in para 3 of the plaint) :--
(1) Shop situated on Kh. No. 496/1. Khata Khatauni No. 44 Min/144, measuring 0-00-52 hectares on which single storey shop is standing, according to the Jamabandi for 1984-85 of Mauja Sarkaghat, District Mandi. The shop is on area measuring 0-00-25 hectares.
(2) Double storeyed shops on Kh. Nos. 564 and 502 in Khata Khatauni No. 205/460 Min in Abadi measuring 0-00-65 and 0-00-63 hectares, in all measuring 0-01-28 hectares according to Jamabandi for 1984-85 of Mauja Sarkaghat, District Mandi.
(3) House standing on Kh. No. 497/1 which is three storeyed on area measuring 0-00-22 hectares in Khata Khatauni No. 474/426 according to the Jamabandi for the year 1984-85 of Mauja Sarkaghat, District Mandi.
(4) Shop-cum-house on Kh. No. 501/1 measuring 0-00-12 hectares, Khata Khatauni No. 174/426 according to Jamabandi for 1984-85 of Mauja Sarkaghat, District Mandi.
(5) 3-storeyed house on Kh. No. 503/1 measuring 0-00-16 hectares in Khata Khatauni No. 174/426 according to Jamabandi for 1984-85 of Mauja Sarkaghat, District Mandi.
(6) Shop standing on Kh. No. 506/1, measuring 0-00-19 hectares in Khata Khatauni No. 175/427 according toJamabandi for the year 1984-85 of Mauja Sarkaghat District Mandi.
(7) Three storeyed shop-cum-house on Kh. No. 570, Khata Khataunt No. 100/262 Min measuring 0-00-90 hectares according to the Misal Hakiat Bandobast Jadid of Sarkaghat. District Mandi.
(8) Double storeyed shop-cum-residence in Khasra No. 563. Khata Khatauni No. 174/ 426 measuring 0-00-36 hectares according to Jamabandi for 1984-85 Mauja Sarkaghat. Mandi District
(9) 2 plots of land, comprised in Kh. No. 465 measuring 47-05 sq. yards and 1191 measuring 22-08 sq. yards in Mauja Uria. Tehsil and District Una according to the Jamabandi for the year 1976-77.
14. The petitioner have further averred in para 3 of the plaint in the following terms :
'These properties were inherited by Shri Ram Rakha Mall and after his death the plaintiffs and defendants Nos. 1 to 3 have 1/8th share each in the same. The plain-tiffs are in possession of shops and residen-tial houaes above it on Khaara No. 570, All other properties, except the two, plots, in Unn. which are tying vacant, are in possession of defendant no. 1 and his sons, defendants 4 apd 5. The said properties are liable to be partitioned by metes and bounds, and plaintiffs and defendants Noa. 1 to 3 are entitled to separate possession of the properties mentioned supra.'
15. The valuation of the suit for the purposes of court-fees and Jurisdiction as put forth by the petitioners in para 9 of their plaint has been quoted above.
16. In Mina Ram v. Amolakam, AIR 1966 Him Pra 4, the plaintiff herein filed a suit for a declaration that lands and houses, subject-matter of the suit, were Joint Hindu family property of the plaintiff and defendant No. 1 and for separate possession by partition of his half share in such lands and houses, and for rendition of accounts. The valuation of the suit as put forth by the plaintiff was objected to by the defendants. The learned trial Court came to the conclusion that the plaintiff had not properly valued the suit for purposes of court-fee and had not paid the full court-fee on the reliefs claimed. The trial Court directed the plaintiff to pay additional court-fee of the valueof Rs. 3,200.60 paise on the plaint. The matter was carried in revision by the plaintiff. The question, which arose was --whether the case would be governed by Art. 17(vi) of the Second Schedule of Court-fees Act. 1870 (corresponding to Art. 13(iv), Second Schedule of the H. P. Court-fees Act, 1968) or by Section 7(iv)(b) or Section 7(v) of the Court-fees Act, 1870.
17. Following the ratio laid down by the Full Bench of the Lahore High Court in Asa Ram v. Jagan Nath, AIR 1934 Lahore 563, it was held that in a suit for partition of joint property, where the plaintiff alleges joint possession, the suit would fall under Art. 17(vi) of Second Schedule of Court-fees Act, 1870 and a fixed court-fee is payable. Section 7(iv)(b) would not apply to such a suit. If, however, the plaintiff has been excluded from joint enjoyment or where he has never been in enjoyment or possession, actual or constructive, of the Joint property and desires to separate his share from the other co-sharers, he must sue for possession and partition and in such a case he must pay ad valorem court-fee on his share under Section 7(lv)(b) of the Court-fees Act. 1870.
18. To the similar effect has been by the Full Bench of Bombay High Court in Shankar Marutl Girme v. Bhagwant Gunajl Girme. AIR 1947 Bombay 259 and by the Full Bench of Madras High Court in C. R. Ramaswami Ayyanger (Minor) v. C. S. Rangacharlar, AIR 1940 Madras 113, and by the Delhi High Court in Smt. Prakash Wati v. Smt. Dayawanti. AIR 1991 Delhi 48.
19. The position, therefore, is that in a suit to enforce right to share a Joint family property, that is. a suit to be restored to joint possession or enjoyment or separate possession and enjoyment by partition of a joint family property, when the plaintiff is not in possession of such property, whether actual or constructive, court-fee would be payable under Section 7(iv)(b), ad valorem on the value of the relief as fixed and in a suit for partition of Joint property, whether owned by a joint family or otherwise. Where the plaintiff claims that he is in actual or constructive possession thereof fixed court-fee would be payable under Art. 17(vi) of the Second Schedule of the Court-fees Act, 1870, corresponding to Art. 13{iv] of the Second Schedule of the H. P. Court-fees Act. 1968.
20. As stated above, as many as nineimmovable properties, as detailed in para 3 of the plaint, are Involved in the present case. It is the admitted case of the plaintiffs that they are in possession of only one property, that is, the one detailed at Serial No. 7 of para 3 of the plaint. The plaintiffs have admitted the possession of respondent No. 1 and his sons on the remaining properties. Insofar as the two plots at Una are concerned, the plaintiffs are silent as to in whose possession such plots are. The plaintiffs have not even asserted their constructive possession over the properties other than the one in their possession.
21. In view of the averments made in the plaint that the plaintiffs are not in possession of all the properties involved in the suit, Section 7(iv)(b) of the H. P. Court-fees Act, 1968 would be applicable to the present case and the plaintiffs are required to pay ad valorem court-fee on the value of the shares claimed by them in the suit properties.
22. Evidence has come on the record to show that the market value of the suit properties as on the date of suit was more than 41,00,000/- as assessed by DW-1 Shri Hlrender Kumar. No evidence has been led by the plaintiffs in rebuttal to such evidence. The plaintiff Tara Kaushal as PW-1 has admitted that the value of the suit properties in Sarkaghat is more than Rs, 40,00,000/-. He could not state as to the value of the plots in Una. The learned District Judge, therefore, has rightly taken the market value of the entire suit properties at the value assessed by DW-1, The shares of the plaintiffs in such properties are 5/8th, that is, to the extent of 1/8 each. Calculating at this basis the valuation of the suit for the purposes of court-fee and jurisdiction has been rightly held to be Rs. 25,86,240/- on which the plaintiffs are required to pay ad valorem court-fee under Section 7(iv)(b) of the H. P. Court-fees Act, 1968. The suit has, therefore, been rightly held to be not within the original pecuniary jurisdiction of the District Judge.
23. As a result, the present revision petition fails and the same is dismissed accordingly.