B. SUBHASHAN REDDY, J.

( 1 ) THIS appeal has been directed against an order returning the plaint on the ground that the Court fee which is payable is under section 34 (1) of the A. P. Court Fees and suits Valuation Act, 1956 and not under sub-section (2) thereof.

( 2 ) SUB-SECTION (2) of Section 34 of the a. P, Court Fees and Suits 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 fees and Suits 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 3/4ths 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.

( 3 ) 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 A. P. Court Fees and suits Valuation Act, if a fresh situation arises or fact is brought to its 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.

( 4 ) HENCE, we direct the lower Court to number the suit and proceed further and issue notices to the defendants.

( 5 ) LEARNED Counsel for the appellants has cited a judgment of the Supreme Court in Neelavathi vs. N. Natarajan, but the same cannot be considered at this juncture and the same may be projected whenever a requisition is given to the appellants to pay more Court fee and if a contest is made on the valuation issue.

( 6 ) THE C. C. C. A. is allowed in part to the extent indicated above. No costs.

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