SBCWP NO.1559/2008. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CIVIL WRIT PETITION NO.1559/2008. Babulal and ors. Vs. Additional District Judge and anr. Date of Order : 19/2/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Jinesh Jain for the petitioners. ****** BY THE COURT:- This writ petition has been filed against the order dated 17/12/2007 whereby the application of the petitioner who is defendant in the suit filed by the plaintiff respondent for deciding Issues No.2 and 7 as preliminary issues has been rejected. 2) Learned counsel for the petitioner has argued that Issue No.7 was with regard to the fact as to whether the plaintiff has paid the requisite court fee or not. If this issue is decided against the plaintiff, it will go to the route of the case as it also affects the jurisdiction of the court. Learned counsel for the petitioner submitted that judgment of this court cited before the trial court has not been appreciated by the trial court. This issue being pure issue of law ought to have been examined at the threshhold. SBCWP NO.1559/2008. 2 3) Bone of contention between the parties is regarding fact whether plaintiff, not being in possession of the disputed property, is liable to pay the court fee on the basis of his 1/3rd share possession of which is claimed by him and whether the suit is not liable to be dismissed as plaintiff has not paid the requisite court fee. Learned trial court on analysis of the issue aforesaid and consideration of the pleadings especially prayer clause of the plaint held that the suit in fact has been filed by the plaintiff in the court of Additional District Judge which is higher court than the original court and, therefore, even if eventually this issue is decided against the plaintiff, same can be made at the later stage as this will not affect the jurisdiction of the court. Learned trial court further held that the cited judgment was distinguishable because in this case only question that was raised was with regard to payment of advolerum of court fee whereas in the present case, there is the question of possession. 4) On perusal of the aforesaid impugned-order and consideration of the arguments raised, I find that while the plaintiff is claiming that the suit in view of the relief claimed for therein is covered by Section 35(1) of the Rajasthan Court Fee & Suits Valuation Act, 1961, defendant asserted that without being in exclusive possession of the disputed SBCWP NO.1559/2008. 3 property of the plaintiff who wants to recover of its 1/3rd part is required to pay court fee of the market value of such property. Such issue cannot be said to be pure and legal question of law because it is essentially based on the proof of fact that whether the defendants are in exclusive possession of the entire suit. Trial court, in my view, therefore has not erred in not accepting the application of the petitioner. 5) I do not find any merit in this writ petition. The writ petition is accordingly dismissed. (MOHAMMAD RAFIQ), J. anil/-