THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.6153 OF 2009 ORDER: This Civil Revision Petition, under Article 227 of the Constitution of India, is directed against the order, dated 11.11.2009, in I.A.No.331 of 2005 in O.S.No.450 of 2004, on the file of X Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad, whereunder and whereby, the petition, filed under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, 1908, (for short, “C.P.C.”) to direct the respondents/plaintiffs to pay the proper Court fee as provided under Section 34 (1) of the Andhra Pradesh Court Fees and Suits Valuation Act, 1956, (for short, “the Act”) instead of under Section 34 (2) of the Act by showing correct extent and value of the suit property in the said Original Suit and on failure to pay the same, to dismiss the suit, was dismissed. 2. Learned counsel for the petitioners contended that the valuation paragraph does not form part of the pleadings; that there is no allegation in the plaint to show that the respondents/plaintiffs are in joint possession of the suit property; that in the absence of any pleading that the respondents are in joint possession of the suit property, proper Court fee as provided under Section 34 (1) of the Act is payable and not under Section 34 (2) of the Act, and hence, he prays to set aside the impugned order. 3. On the other hand, learned counsel for the respondents contended that valuation paragraph also forms part of the plaint; that there is an allegation that the respondents/plaintiffs are in joint possession of the suit property; that the trial Court rightly numbered the suit; that therefore, the proper Court fee payable under Section 34 (2) of the Act applies to the present case and hence, he prays to dismiss the revision petition. 4. There is a distinction between Sub - sections (1) and (2) of Section 34 of the Act. In a suit for partition, when the plaintiff pleads that he is not in exclusive possession of the property, the Court fee as provided under Section 34 (1) of the Act has to be paid, and when the plaintiff is in joint possession of the property along with other co- sharers, proper Court fee under Section 34 (2) of the Act has to be paid. For ascertaining the necessary Court fee to be paid on the plaint, the averments contained in the plaint have to be prima facie accepted as true and correct. At this stage, it is not required to test whether the plaint averments are correct or false. The Court has to accept the plaint averments as correct for the purpose of deciding the Court fee. As seen from the entire averments in plaint, there is no allegation of whatsoever that the respondents/plaintiffs are in constructive joint possession of the suit property along with the petitioners/defendants. On the other hand, the averment in plaint would go to show that the petitioners are managing the properties of the deceased Mohammed Ishaque. 5. There cannot be any dispute that Order VII Rule 1 C.P.C. contemplates the particulars to be mentioned in the plaint. Some of the particulars require to be mentioned in the plaint are valuation, jurisdiction and Court fee. So, from Order VII Rule 1 C.P.C., the valuation of the suit and Court fee also form part of pleading. 6. No doubt, a distinction is sought to be drawn by the learned counsel for the petitioners that order VI Rule 3 C.P.C. provides that the plaint should be in the model proforma given with regard to the various types of plaints annexed in Appendix – A of the C.P.C. Order VI Rule 1 C.P.C. cannot be read in isolation. Necessarily, that has to be read in juxta position along with Order VII Rule 1 C.P.C. as they have got to be. If both the provisions are read together, it is clear that valuation paragraph and Court fee form part of the plaint. Therefore, the contention of the learned counsel for the petitioners on this aspect cannot be accepted. 7. However, the learned counsel appearing for the respondents placed reliance on a decision of this Court in A. Divakrupamani v. A. Sakuntala Devi[1], wherein it is held thus: “Sub-section (2) of Section 34 of the A.P. Court Fee and Suit Valuation Act comes into play when the parties are in joint possession and a fixed Court fee is payable having regard to the valuation and the maximum being Rs.200/-. But, in a matter arising under Section 34 (1) of the A.P. Court Fee and Suit Valuation Act, 1956, which is on the premise that the plaintiff is not in possession but is seeking for decree of partition and possession, the Court fee payable is according to the valuation of 3/4th of the market value of the share which the plaintiff sought for. The Court of the Chief Judge subsequently has now called upon the plaintiffs to pay the Court fee on the ground that the plaintiffs cannot be deemed to be in joint possession.” That is a case where there is averment in the plaint with regard to the joint possession of the plaintiffs along with co-sharers. 8. The learned counsel also placed reliance on a decision of the Honourable Supreme Court in Lakshmi Ammai v. K.M. Madhavakrishnan[2], wherein it is held thus: “In this particular case there is hardly and difficulty in holding that the plaintiff in paragraph 14 of the plaint has clearly alleged that she is in joint possession and is seeking partition and separate possession of her half share in the suit properties as heir of deceased, Paramayee. Obviously, the court fee that is payable is as she has claimed, namely under Section 37 (2) which corresponds to Article 17 (b) of the Central Act, which is the predecessor legislation on the subject. We allow the appeal and send the case back to the trial Court and direct that Court to proceed with the suit expeditiously. We make it clear that our decision on the question of court fee does not have any implications on the merits, including the validity or otherwise of the Will. No costs.” That is also a case where there is averment in the plaint, which would go to show that the plaintiff therein was in joint possession and enjoyment of the property along with other co-sharers. There is no difficulty in accepting the ratio laid down in the above two cases. But, they are not applicable to the present facts of the case because there is no averment in the plaint that the respondents/plaintiffs are in joint possession and enjoyment of the suit property. Except, a hand written allegation viz., “as it is Joint family property and in Joint possession.”, which appears to have been incorporated and interpolated in valuation paragraph subsequently after filing the suit in order to avoid the Court fee, there is no other allegation in the plaint. The counsel or the party concerned did not attest the said hand written allegation. Hence, the said averment in the plaint cannot be taken as a sole ground to decide or conclude that the respondents are in joint possession and enjoyment of the suit property along with the petitioners. Hence, the impugned order is liable to be set aside and the objection raised by the petitioners herein has to be upheld. 9. Accordingly, the Civil Revision Petition is allowed setting aside the impugned order, dated 11.11.2009, in I.A.No.331 of 2005 in O.S.No.450 of 2004, on the file of X Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad. The respondents/plaintiffs are directed to pay the Court fee as required under Section 34 (1) of the Act. There shall be no order as to costs. _______________ K.C. BHANU, J October 26, 2010 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY SIXTH DAY OF OCTOBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.6153 OF 2009 Between: Mohd. Yakub and others .....PETITIONERS AND Smt. Waheeda Begum and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.6153 OF 2009 October 26, 2010 [1] 2000 (2) ALD 754 (DB) [2] (1978) 4 SCC 15