G. Krishna Mohan Reddy, J.

1. This appeal and C.C.C.A.No.38 of 2006 are preferred against judgment and decree passed in O.S.No.329 of 1999 dated 19.9.2005 on the file of the Court of Additional Metropolitan Sessions Judge for trial of communal offence cases-cum-VII Additional Metropolitan Sessions Judge-cum-XXI Additional Chief Judge, Red Hills, Nampally, Hyderabad, whereby and whereunder the suit filed for partition and separate possession of the properties scheduled therein and other reliefs was decreed in favour of the plaintiff.

2. C.C.C.A.No.38 of 2006 is preferred by the defendants 1 and 2 and C.C.C.A.No.225 of 2008 is preferred by the defendants 3 and 4 in the said suit. For the sake of convenience, we refer the parties as arrayed in the suit.

3. The question now involved in the appeal at this stage is as to whether the defendants are liable to pay court fee with reference to the pleas taken in the plaint with regards to the subject matter of the suit or with reference to the ultimate decision of the trial Court with regards to constructive or actual possession of the plaintiff over the plaint schedule properties. After deciding this, the appeal will finally be heard with regard to other aspects involved.

4. In fact, the plaintiff filed the suit against the defendants for partition of the plaint schedule movable and immovable properties into five equal shares and allotment of one share out of that to her and for costs and for mesne profits. The defendants 1 to 4 are younger and elder brothers of the plaintiff.

5. The claim of the plaintiff is that their father late Vallabhdas died intestate on 10.6.1990 leaving behind herself and the defendants as legal his legal heirs. The schedule property belonged to their father. By virtue of his death, herself and the defendants succeeded to the property as per law. It is also according to the plaintiff that she and her brothers became the co-parceners of the properties. It is further according to her that in spite of her requests, the defendants 1 to 4 did not come forward to effect the partition of the properties according to their shares.

6. The claim of the defendants is that the plaintiff got no right in the schedule properties. During the lifetime of their father, the first of them filed a suit i.e. O.S.No.7 of 1963 on the file of the Court of I Additional Chief Judge, Hyderabad against their father, mother Smt. Anasuya Devi V.Shah and brothers for partition and separate possession of their joint family immovable properties, which ended in compromise by virtue of which, all their joint family properties were partitioned and each of them was allotted 1/6th share therein and accordingly each of them has been in possession of his or her allotted share. It is further according to them that at the time of the marriage of the plaintiff, which took place in the year 1969, she was given considerable gifts by reason of which she never demanded any rights in the properties of their father. It is further according to them that their mother Smt. Anasuya Devi V.Shah executed a Will on 30.9.1978 in which she bequeathed a sum of Rs.10,000/-to the plaintiff, which was paid by their father to the plaintiff. They further claim that their father executed his last will dated 7.1.1987 appointing the first of them (first defendant) as his executor bequeathing his 1/5th share in favour of his sons and grand children. They claim that accordingly the shares of their parents as bequeathed are being enjoyed. So, they totally refute the claim of the plaintiff. They further claim that under those circumstances, the plaintiff should have filed necessary court fee under Section 34(1) and not Section 34(2) of Andhra Pradesh Court Fees and Suits Valuation Act, 1956 (for short ‘the Act’) as was done by the plaintiff.

7. Various issues were framed in accordance with the pleas taken by the parties respectively. While disposing of the suit on contest, the trial Court observed basing upon the evidence r