Andhra HC (Pre-Telangana)
Charlapalli Yadamma vs Miryala Gopaiah And Anr. on 18 August, 2003
Equivalent citations: 2003(5)ALD753
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. The petitioner presented a plaint SR.No. 674 of 2003 in the Court of the Junior Civil Judge, Nalgonda seeking the relief of partition and separate possession of the suit schedule property, against the 1st respondent." She paid the Court fee under Section 34(2) of the A.P. Court Fee and Suits Valuation Act, 1956 (hereinafter referred to as 'the Act'). The Trial Court returned the plaint on taking the view that Court fee ought to have been paid under Section 34(1) of the Act, since it is not established that she is in joint possession with the defendants. Hence, this revision petition.
2. Sri Sai Gangadhar Chamarthy, learned Counsel for the petitioner submits that the petitioner is the sister of the 1st defendant and according to her, the suit schedule property is held in joint, by herself and the 1st defendant. It is his case that unless the plaintiff in a given case avers to the effect that he is excluded from the possession of the suit schedule property and seeks the relief of partition and possession of such property, the question of requiring him to pay Court Fee under Section 34(1) of the Act does not arise. He places reliance upon the judgment of this Court in K. Venkata Rangadass v. K. Venkata Krishna Rao, , and on the judgment of the Supreme Court in Neelavathi v. N. Natarajan, .
3. The matter is being disposed of at the admission stage. In view of the judgment of the Madras High Court in Ramaswamy Gounder v. Ambujam, 1987 (1) MLJ 113, and the judgment of this Court in Battula Lakshmi v. Battula Mallaiah @ Lakshmudu, 1994 (1) AWR 274, which are to the effect that the liability of the plaintiff to pay the Court Fee under Sub-sections (1) or (2) of Section 34 of the Act needs to be decided only on the basis of the averments in the plaint, this Court feels it is not necessary to issue notice to the respondents, at this stage. Further, it is only a revision against an order returning the plaint, on the adequacy of Court Fee. No right can be said to have accrued to the defendants, under such order.
4. Section 34 of the Act deals with the payment of the Court Fees on suits for partition. Sub-section 1 deals with the suit of partition filed by plaintiff "who has been excluded from the possession of such property". In such an event the Court Fee is to be paid on the market value of the property, sought to be recovered as a consequence of partition. Sub-section (2), however, deals with the case where the suit is for partition and separate possession, of a joint family property or property owned jointly or in common. In such case, the plaintiff is required to allege that he is in joint possession of such property. A fixed Court Fee of Rs. 200/- is payable on such suits.
5. The Supreme Court, in Neelavathi 's case (supra) held that unless the plaintiff himself avers that he has been excluded from the joint possession of the suit schedule property, he cannot be required to pay the ad-valoram Court Fee. In other words where such averment does not find place in the plaint, the plaintiff can maintain the suit by paying the Court Fee under Section 34 (2) of the Act. To the same effect, the judgment of this Court in K. Venkata Rangadass's case (supra).
6. From a perusal of the plaint in the present case, it is not evident that the petitioner herein had pleaded that she has been excluded from the possession of the land. On the other hand, it is her case that the possession of the 1st defendant over the suit schedule property was on her behalf also. The truth or otherwise of the statement is immaterial at this stage. As long as, the petitioner did not plead that her possession has been excluded, she cannot be required to pay the Court Fee on that under Section 34(1) of the Act Hence, the order of the Trial Court returning the plaint is set aside. The Trial Court is directed to receive the plaint on payment of the Court Fee as provided for under Section 34(2) of the Act.
7. Accordingly, the CRP is allowed. No costs.