In a partition suit, the court fee is determined based on the averments in the plaint. If the plaintiff asserts joint possession of the property, the case falls under Section 34(2) of the Court Fees and Suits Valuation Act, attracting a fixed court fee.

A. SEETARAM REDDY, J.

( 1 ) THE question that falls for determination in this revision petition is whether the case is governed by S. 34 (1) or 34 (2) of the Court-fees and Suits Valuation Act (hereinafter referred to as the Act.)

( 2 ) THE plaintiffs who are the petitioners herein, filed a suit for partition of the properties described in the plaint schedules into three equal shares and for allotment of two such shares to them. They paid a fixed court - fee of Rs. 200. 00 under S. 34 (2) of the Act. Thereafter at the time of the inspection of the Subordinate Court the District Judge pointed out that the first defendant in his written statement averred that he alienated items 2 and 3 of the plaint A Sch in favour of defendants 2 and 3 and as the first defendant purchased items 2 to 6 of the plaint B Sch. property with the joint family funds in the name of the second defendant, the plaintiffs have to pay advalorem court - fee under S. 34 (1) of the Act. On that notice of theft check slip was issued and objections were filed by the plaintiffs Advocate stating that the facts averred cannot be brought within the ambit of S. 34 (1) of the Act. However, the subordinate Court held that in these circumstances it cannot be held that the plaintiffs were in joint possession as tenants in common of items 2 and 3 of plaint A Sch. and items 2 to 6 of B Sch in which case they must pay ad valorem court - fee under S. 34 (1) and not a fixed court - fee under S. 34 (2 ). Hence this revision.

( 3 ) THE learned counsel for the petitioner, Sri Parabrahma Sastry, contends that the lower Court committed an apparent error in coming to the conclusion that the materials as disclosed in the plaint would fall within the ambit of S. 34 (1) of the Act. It is further argued that the lower Court has misread in certain respects the plaint averments and also erred in placing reliance on the averments in the written statement as well. In determining the court fee to be paid it is further argued, the averments in the plaint alone would have to be looked into ; if that be so, the case falls within the ambit of Section 34 (2 ). Reliance was placed on the decisions in Sathappa Chettiar V. Ramanathan Chettiar, (AIR 1958 SC 245), N. Kondaiah V. N. Ramana Reddy (1970) 2 Andh WR 351: (AIR 1971 Andh Pra 142), Siba Rani V. Ramendranath (AIR 1963 Cal 46), R. Basanna V. Adeppa (AIR 1951 Mad 732) and Akhandala V. Damodara (AIR 1952 Mad 810 ).

( 4 ) IT is now well settled that the question of court-fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on the merits.

( 5 ) IN order, however to adjudicate upon the point raised herein the statutory provisions laid down in S. 34 must be noticed. That section reads as under:- "34 (1 ). In a suit for partition and separate possession of a share of joint family 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 moveable property or three-fourths of the market value of the immovable property included in the plaintiffs 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:-

( 6 ) WHAT is manifest from the above provisions is that in the case of sub-sec. (1) where partition of the joint possession of the property need not be established, whereas in order to attract the benefit of sub-sec. (2) one has to establish that he is in joint possession of such property.

( 7 ) THE averments made in the plaint are :-"the plaintiffs submit that the 1st defendant in collusion with the 4th and 5th defendants allowed item of the plaint A schedule which is a recent building constructed on a site of nearly two acres, and which is worth more th

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