1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.3121/07 Amit Kumar Vs. Addl. District & Session Judge No.2 & Ors. Date of order : 12/2/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Hemant Sharma for the petitioner. ****** This writ petition has been filed against the order dated 9.1.2007 whereby the application of the defendant petitioner filed under Section 35 of the Rajasthan Court Fees And Suits Valuation Act, 1961 has been rejected. The said application was filed by the defendant- petitioner on the premise that the suit filed by the petitioner being covered under clause (2) of Section 35, the respondent was required to pay court fee on the market value of her share in the property. The learned counsel referred to para 17 of the plaint and argued that the 2 plaintiff admitted exclusive possession of the defendant-petitioner and therefore the learned trial court has wrongly rejected the application holding that the same was covered under clause (2) of Section 35. Upon hearing the learned counsel for the petitioner and perusing the impugned order and other material on record, I find that the plaintiff in para 9 of the plaint has asserted that plaintiff as well as defendant no.1 jointly inherited the property upon death of their father Sundar Lal. In para 10 of the plaint, it is contended that the defendant no.1 was residing in the house with the consent of the plaintiff whereas in para 11, it is contended that the properties were in the joint possession of the plaintiff and defendant no.1 and from time to time the plaintiff has been visiting the place for getting her shares from the agriculture 3 produce. In para 19 of the plaint also, it is contended that the properties are in the joint ownership and possession of the parties and that plaintiff wants to get half the share of her property with exclusive possession. It is trite law that the co-owners are considered to be in possession of every inch of the property. Prayer that has been made in the plaint is that the property be partitioned in equal share and the plaintiff be put in independent possession of her share. Clause (2) of Section 35 inter alia provides that Court fee in any suit for partition of property which is in joint possession of such parties, shall be paid by prescribed rates. When the plaintiff has not admitted the defendant noi.1 to be in exclusive possession of the entire property, the view taken by the trial court that the court fee shall be payable 4 in terms of clause (2) of section 35 cannot be faulted. I therefore do not find any merit in the writ petition. The writ petition is accordingly dismissed. (MOHAMMAD RAFIQ), J. RS/