*THE HON’BLE Ms. JUSTICE G. ROHINI + CIVIL REVISION PETITION No.3858 OF 2011 % 04/11/2011 # Smt. Veena Challa … Petitioner Vs. $ 1. A. Pandu Ranga Reddy and others. … Respondents < Gist > Head Note: !Counsel for the petitioner : M/s. S.A. Razak ^Counsel for the respondents : Sri Milind G. Gokhale ?Cases referred : [1] AIR 1982 ANDHRA PRADESH 60 2 2004 (2) ALD 117 3 2004 (1) ALD 539 4 1994 (1) An.W.R 274 5 (1980) 2 Supreme Court Cases 247 THE HON’BE Ms. JUSTICE G.ROHINI CIVIL REVISION PETITION No.3858 OF 2011 Dated: 04.11.2011 Between: Smt. Veena Challa … Petitioner And 1. A. Pandu Ranga Reddy and others. … Respondents THE HON’BLE Ms. JUSTICE G.ROHINI CIVIL REVISION PETITION No.3858 OF 2011 ORDER : The revision petitioner is the plaintiff in O.S.No.684 of 2009 on the file of the Court of the I-Addl. District Judge, R.R. District at L.B. Nagar, Hyderabad. The suit is filed for partition of the suit schedule properties and to allot 1/4th share to the plaintiff. After service of suit summons, the defendants 2 and 3 filed the written statement denying the plea of the plaintiff that the suit schedule property is the joint family property. The joint possession and enjoyment claimed by the plaintiff has also been specifically denied contending that the defendants are in possession and enjoyment in their individual capacity as evidenced by the revenue records and in fact some of the lands were already sold to third parties. On the basis of the pleading in the written statement, the defendants 2 and 3 filed I.A.No.90 of 2010 seeking a direction to the plaintiff to pay court fee of Rs.10,08,960/- under Section 34 (1) of The Andhra Pradesh Court Fees and Suits Valuation Act, 1956 (for short, ‘the Act’) contending that the plaintiff who is not in joint possession of the suit schedule property cannot maintain the suit for partition on payment of fixed court fee under Section 34 (2) of the Act. Though the plaintiff opposed, the Court below by order dated 8.7.2011 allowed I.A.No.90 of 2011 and directed the plaintiff to pay the Court fee under Section 34 (1) of the Act on the market value of the property claimed by the plaintiff to her share. Aggrieved by the said order, the present Revision Petition is filed by the plaintiff. I have heard the learned counsel for both the parties and perused the material available on record. Section 34 of the Act which provides for computation of court fee in partition suits reads as under: “34. Partition Suits:- (1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the movable property or three-fourths of the market value of the immovable property, included in the plaintiff’s share. (2) In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:- When the plaint is presented to— (i) a District Munisf’s Court Rupees Fifty (ii) a Subordinate Judge’s Rupees One hundred if Court or a District Court the value of the Plaintiff’s share is less than Rs.10,000. Rupees two hundred if the value is not less than Rs.10,000. (3) … … … … …” A plain reading of the above provision shows that in a suit for partition the Court fees shall be computed on the market value of the plaintiff’s share if the plaintiff has been excluded from possession of joint family property in terms of sub-section (1) of Section 34 of the Act. However if the plaintiff is in joint possession of the joint family property, sub-section (2) of Section 34 is attracted and a fixed court fees has to be paid at the rates specified therein. In the present case, the plaintiff while pleading that she has been in joint possession and enjoyment of the plaint schedule properties, paid the fixed court fee of Rs.200/- under Section 34 (2) of The Andhra Pradesh Court Fees and Suits Valuation Act, 1956. However the defendants 2 & 3 disputed the plea of joint possession and enjoyment and contended that the entire suit properties were already partitioned among the defendants whose names were recorded in the revenue records and pattadar pass books and title deed were also issued to them. Thus it is contended that the defendants are in exclusive possession and enjoyment of their respective shares and that the plaintiff’s claim that she has been in joint possession and enjoyment of the properties along with the defendants is false. It is also the specific case of the defendants that after the marriage of the plaintiff in the year 1997, the defendant No.1 out of love and affection had gifted two plots to her in the year 2000 vide Gift Deeds, dated 25.8.2000 and 28.8.2000 and having accepted the said gifts, the plaintiff is estopped from filing the suit for partition. On consideration of the rival claims, the Court below while disbelieving the plaintiff’s plea of joint possession along with the defendants, held that the plaintiff is liable to pay the court fee under Section 34 (1) of the Act. The said order is assailed in this Revision petition primarily on the ground that the Court cannot go beyond the averments in the plaint for the purpose of deciding the Court fee payable. While relying upon Section 11 of the Act, the learned counsel for the petitioner vehemently contended that the proper court fee payable on the plaint shall be decided only on the allegations contained in the plaint and on the material furnished by the plaintiff. It is also contended that having accepted the fixed Court fee paid in view of the specific plea in the plaint that the schedule property is the joint family property, the Court below ought not to have directed the petitioner to pay the additional Court fee in terms of Section 34 (1) of the Act merely on account of the objections raised by the defendants. In support of his submission, the learned counsel for the petitioner relied upon KANURI VENKATA RANGADASS v. KANURI VENKATA KRISHNA RAO[1], MIRZA RAHEEM BAIG v. MIRZA MAHAMOOD BAIG AND OTHERS[2], R.V. BHUVANESWARI v. PONNUBOINA CHENCHU RAMAIAH (DIED) AND OTHERS[3] and BATTULA LAKSHMI v. BATTULA MALLAIAH[4]. There can be no dispute about the ratio laid down in the above decisions that the Court has to decide the fee payable on the basis of the material disclosed in the plaint as provided under Section11 (1) (a) of the Act. However it is clear from Section 11 (1) (b) that the decision of the Court under Clause (a) regarding the proper fee payable shall be subject to review from time to time as occasion requires. Moreover, as per Section 11 (2) of the Act, the defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient and whenever such question is raised, the same shall be heard and decided before the hearing of the suit. It is also clear from Section 11 (2) that in case it is decided that the subject-mater of the suit has not been properly valued the Court shall fix a date before which deficit fee shall be paid. In the light of Section 11 (2) of the Act, it is clear that the defendant is entitled to raise an objection as to the sufficiency of court fee paid and such question shall be heard and decided by the Court before the hearing of the suit. Therefore, the Court below cannot be said to have committed any error in taking up the question whether the fixed Court fee paid by the plaintiff is sufficient or not in view of the contention of the defendants that the plaintiff had been excluded from possession of the suit schedule property long back. However the learned counsel for the petitioner/plaintiff further contended that the Court below had grossly erred in concluding that the defendants were in exclusive possession of the suit schedule property without recording any evidence or marking any documents to establish the claim of the defendants as to their exclusive possession. While submitting that as per Section 11 (2) of the Act, the question raised with regard to the sufficiency of Court fee paid shall be heard and decided as contemplated by Order XVIII of the Civil Procedure Code, 1908, the learned Counsel vehemently contended that since no such enquiry was held the finding recorded by the Court below as to the exclusive possession of the defendants was erroneous and cannot be made basis for directing the plaintiff to pay the Court fee under Section 34 (1) of the Act. While relying upon the decision in NEELAVATHI v. NATARAJAN[5], it is also contended by the learned counsel for the petitioner that the plaintiff being a daughter of the 1st defendant is entitled to a share in the joint family property and therefore her joint possession should be presumed in law unless exclusion is established. For proper appreciation of the contentions raised by the learned counsel for the petitioner, it is necessary to look into Section 11 of the Act. “11. Decision as to proper fee:- (1) (a) In every suit the Court shall, before ordering the plaint to be registered decide on the allegation contained in the plaint and on the materials furnished by the plaintiff the proper fee payable thereon. (b) The decision of the Court under clause (a), regarding the proper fee payable shall be subject to review, from time to time, as occasion requires. (2) Any defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order XVIII in the First Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908). If the Court decides that the subject-matter of the suit is not properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the subject-matter of the suit shall be valued in accordance with the Court’s decision and the deficit fee shall be paid. If within the time allowed, the subject- matter of the suit is not valued in accordance with the Court’s decision or if the deficit fee is not paid, the plaint shall be rejected and the Court shall pass such order as it deems just regarding cost of the suit. (3) … … … … … … (4) … … … … … …” It is to be noticed that Order XVIII of C.P.C. deals with hearing of the suit and examination of witnesses. After such hearing, the Court shall pronounce the judgment as provided under Order XX of C.P.C. According to the learned counsel for the petitioner, it is mandatory to follow the said procedure prescribed under Order XVIII of C.P.C. before deciding the objection raised by the defendants under Section 11 (2) of the Act as to the sufficiency of court fee payable. On a careful reading of Section 11 of the Act, I am of the opinion that the reference to Order XVIII of C.P.C. in sub-section (2) of Section 11 is only with regard to hearing of the suit but not with regard to the decision on the question as to the sufficiency of the Court fee. The language of Section 11 (2) itself makes clear the intention of the Legislature that the objection if any with regard to sufficiency of Court fee shall be decided before taking up the hearing of the suit i.e., before trying the suit under the provisions of Order XVIII of C.P.C. There is no other provision which either expressly or by necessary implication supports the contention that it is mandatory to record evidence for deciding the question under Section 11(2) of the Act as to the sufficiency of Court fee paid. Therefore, the contention of the learned counsel for the petitioner that the conclusion of the Court below that the defendants are in exclusive possession is erroneous merely on the ground that no evidence was recorded by the Court is untenable. So far as the correctness of the finding that the defendants are in exclusive possession of the suit schedule property is concerned, admittedly the petitioner/plaintiff is a married daughter. The plea of the respondents/defendants 2 and 3 that the plaintiff was married in the year 1996 and the defendant No.1 had gifted two plots to her after her marriage has not been disputed by the plaintiff. Though it is contended that the said plots were gifted to her tentatively assuring that the suit schedule property would be partitioned after discussions with the other defendants, the Court below disbelieved the same after going through the recitals in the registered gift deeds. The Court below also found that the revenue records filed by the defendants revealed the absolute and exclusive possession of the defendants. Moreover in the plaint itself it was pleaded that the plaintiff has been residing in United States of America. Even according to her, the defendants are in possession of the suit schedule properties. However it is pleaded that the plaintiff was being paid her share out of the profits from the suit schedule properties. It is alleged that even the said payment was stopped and therefore she requested partition when she came to India in July, 2011 for which the defendants refused. Thus it is clear from the recitals of the plaint itself that the plaintiff has been excluded from the possession of the suit schedule property. Therefore the Court below cannot be held to have committed any error in concluding that Section 34 (1) of the Act is attracted and accordingly directing the plaintiff to pay the Court fee on the share claimed by her in the suit schedule property. For the aforesaid reasons, the order under Revision which does not suffer from any patent error of fact or law warrants no interference by this Court. Accordingly, the Civil Revision Petition is dismissed. No costs. _____________ G. ROHINI, J. Dt. 04.11.2011 Note:- LR copy to be marked. (B/O) gbs [1] AIR 1982 ANDHRA PRADESH 60 [2] 2004 (2) ALD 117 [3] 2004 (1) ALD 539 [4] 1994 (1) An.W.R 274 [5] (1980) 2 Supreme Court Cases 247