Andhra HC (Pre-Telangana)
Mirza Raheem Baig vs Mirza Mahamood Baig And Ors. on 4 February, 2004
Equivalent citations: 2004(2)ALD117, AIRONLINE 2004 AP 12
Author: N.V. Ramana
Bench: N.V. Ramana
ORDER N.V. Ramana, J.
1. This revision is preferred against the order dated 17-1-2004 passed by the learned District Judge, Rangareddy in O.S.S.R. No. 158 of 2004. By the said order the learned District Judge directed the plaintiff to pay Court fee under Section 34(1) of A.P. Court Fees and Suits Valuation Act.
2. The suit is filed for partition and separate possession and for cancellation of registered gift deeds. The case of the plaintiff is that the plaint schedule property originally belonged to the mother of the parties and that after her death, the petitioner, her two other sons and her husband succeeded to the property and their names were also entered in the revenue records as joint pattedars. The plaintiff further contended that since there was no partition and separate possession of the suit property, he is in joint possession of the plaint schedule property. The suit is therefore filed by paying the fixed Court fee under Section 34(2) of the Andhra Pradesh Court-Fees and Suits Valuation Act, 1956. But, basing on some entries in the pahani for the years 1995-96 and 2001 and 2002, in which the name of the plaintiff is not shown either as pattedar or as possessor, the Court below held that "documents will clinchingly show that he is not in possession of the property apart from that there was also division between the brothers and the same was mentioned", and accordingly returned the plaint directing him to pay the ad valorem Court-fee under Section 34(1) of the Act.
3. The contention of the revision petitioner is that he is in possession of the suit property and in a suit for partition, the basis for computation of Court fee is the averments in the plaint and not the documents filed by the party and that at the stage of registration of the suit, the Court below is not justified in giving a finding as to the possession of the plaintiff over the suit property.
4. Heard the learned Counsel for the respondents.
5. Having heard the learned Counsel for the parties and having perused the order under revision, I am of the firm view that the Court below has grossly erred in passing the impugned order. In a suit for partition, the Court fee must be determined on the bars of that averments made in the plaint and for the purpose of computation of Court fee, the Court has to construe mainly the averments in the plaint. At that stage, the Court below is not entitled to travel beyond the plaint. In the instant case, the case of the plaintiff is that he succeeded to the property of his mother, being her legal heir along with his two brothers and his father and that he is in joint possession of the plaint schedule property. In view of the clear-cut averment made in the plaint that the plaintiff is in joint possession of the plaint schedule property, the Court fee has to be paid only under Section 34(2) of the Act. But the Court below on an erroneous view of the matter and placing reliance on some entries made in the pahanies proceeded to record a finding to the effect that the plaintiff is not in joint possession of the suit property and that therefore he is liable to pay Court fee under Section 34 (1) of the Act. In my opinion, the Court below had grossly erred in recording a finding as to the possession at this stage and even before the trial of the suit could take place. The approach of the Court below in by-passing the averments made in the plaint is perverse. Therefore, I am of the opinion that the Court has to take into consideration only the recitals in the plaint and nothing else.
6. In a case reported in G. Venkata Rao v. Nallamolu Bala Koteswararao, (DB), a Division of this Court dealing with similar question, held that while computing the Court fee under the Act, the Court has to take into consideration only the recitals of the plaint. The observations of the Division Bench are apposite and are extracted hereunder:
"At the inception the Trial Court has to go by the recitals of the plaint and if the same is challenged by the defendants at a later point of time, the Court can always frame a triable issue as to whether the suit is properly valued and whether the Court fee paid is proper. Even otherwise at any stage the Court is always empowered under Section 11 of the Act, if a fresh situation arises or fact is brought to his notice, to give check slip as to why proper Court fee in the view of the Court should not be paid. But these are the stages which will arise later and suffice it to say, at this juncture the suit ought to have been numbered."
7. For the foregoing reason, the impugned order passed by the Court below is liable to be set aside.
8. In the result, the CRP is allowed and the order under revision is set aside. The Court below is directed to register the suit accepting the Court fee paid under Section 34(2) of the Act, if it is not otherwise in order.
9. However, in the event any objection is taken by the defendant as to the valuation of the suit and the Court fee paid thereon, the Court below is directed to take into consideration such objection at appropriate time and deal with the same on its own merits and in accordance with law, after duly giving an opportunity of hearing to the plaintiff.
10. No costs.