[1] CMA 4258/2009 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT S.B. CIVIL MISC. APPEAL NO. 4258/2009 GHANSHYAM & ANR. Vs. RADHEY SHYAM Date: 04.09.2009 HON'BLE MR. JUSTICE S.P. PATHAK Mr. Aatish Jain, Advocate for the appellants. Mr. Dinesh Kala,Advocate for the respondent. **** Both the learned counsel appearing on behalf of the respective parties requested that the matter may be heard and decided at this stage. At the request of the parties, the appeal is heard finally. 2. This appeal under Order 43 Rule 1(u) of the Code of Civil Procedure has been filed against the order of remand dated 31.07.2009 passed by Additional District & Sessions Judge (Fast Track), Mahawa, District Dausa in Regular Civil Appeal No. 34/2008(71/2005). 3. The facts in brief are that the plaintiff- respondent filed a suit on the basis of possession for partition and for permanent injunction. The court fees fixed paid was Rs. 200/-. The learned trial Court framed issues on the basis of the pleadings of the parties and issue Nos. 4 and 5 were [2] CMA 4258/2009 in relation to jurisdiction of the Court and in relation to deficit court fees paid. The trial Court's finding was that the court fees was not paid properly and it was deficit court fees. Ultimately, the trial Court dismissed the suit vide its judgment and order dated 10.02.2005, against which an appeal was preferred which came to be decided by the Additional District & Sessions Judge (Fast Track), Mahawa, District Dausa vide his judgment and order dated 31.07.2009, whereby the matter has been remanded back for recording findings after providing opportunity of hearing to the parties. 4. The contention of the learned counsel is that the trial Court has properly considered the mater and evidence was also available and, therefore, it was in the fitness of the things for the Appellate Court to have decided the matter finally in appeal itself as there was no need to remand the case back. 5. It has also been contended that in view of the statement of the plaintiff, it is apparent that the suit was for partition and the value of the property is more than 7 lacs, therefore, the court fees paid was deficit and the appeal itself was liable to be dismissed. 6. On the other hand, learned counsel for the [3] CMA 4258/2009 respondent submits that to determine the court fees, the contents of the plaint are relevant and the suit was not filed for declaration of possession because the property in dispute was in possession of the plaintiff, therefore, in view of the provisions of Section 35 of the Rajasthan Court Fee and Suit Valuation Act, 1961, the court fees fixed was liable to be paid and proper fees was paid. 7. It is contended that it is correct that the Appellate Court could have decide the matter itself, but when it is found that in the case it was essential to record the evidence, the Appellate Court has remitted the matter back on issue Nos. 4 and 5 to decide the same as preliminary issues and thereafter, if need so arise, to proceed with the trial. 8. Learned counsel submits that in view of the above circumstances, there does not appear any reason to interfere in the judgment and order passed by the Appellate Court. 9. After carefully considering the submissions made before me, I find that as per the provisions of the Rajasthan Court Fee and Suit Valuation Act, 1961, if the suit is filed without seeking relief of possession, then court fees is fixed and if the suit is filed for seeking relief of possession and [4] CMA 4258/2009 declaration, then court fees is liable to be paid on market value of the property. 10. At this stage, I do not want to express any opinion on the merits of the issues which are to be determined by the trial Court as the observations made herein, may either way prejudice parties to the litigation. 11. After considering the matter thoroughly, I am of the opinion that the Appellate Court has correctly remanded the matter back to the trial Court to decide the same, however, looking to the fact that the case has become quite old, it is expected from the learned trial Court to expedite the trial and decide the suit preferably within a period of six months. 12. With the above observations, the appeal stands dismissed. (S.P. PATHAK),J. /KKC/