In a suit for partition of joint family property, where the plaintiffs claim joint possession, a fixed Court fee of Rs.200.00 is payable under Sec 34(2) of APCF and SC Act.

Headnote:
CIVIL PROCEDURE CODE - ORDER VII RULE 11 - REJECTION OF PLAINT - COURT FEE - VALUATION OF SUIT - JOINT POSSESSION - PLAINTIFFS CLAIMING JOINT POSSESSION - FIXED COURT FEE PAID - APPLICATION FOR REJECTION OF PLAINT DISMISSED - NO INTERFERENCE BY HIGH COURT.
Fact of the Case:

Plaintiffs filed a suit for partition of plaint schedule property, claiming joint possession along with defendants 1 and 2. Court fee of Rs.200.00 was paid under Sec 34(2) of APCF and SC Act, as the suit schedule property was valued at Rs.9, 35, 96, 000.00. Defendants 3 and 4 filed an application under Order VII Rule 11 (b) and (c) of CPC to direct the plaintiffs to value the suit under Sec. 34 (1) of the Andhra Pradesh Court Fee and Suits Valuation Act, 1956 and pay deficit Court fee. The trial Court dismissed the application, observing that the Court fee aspect is a question of fact to be decided during the trial and that jointness over properties in a Hindu Law is presumed until the contrary is established.
Finding of the Court:

The High Court held that the trial Court did not commit any error in dismissing the application for rejection of the plaint. The Court observed that the averments in the plaint disclose joint possession by the plaintiffs, and hence, a fixed Court fee of Rs.200.00 under Sec 34(2) of APCF and SC Act was paid. The Court further noted that the contention of the defendants that the plaintiffs are not in joint possession is a question of fact to be decided after evidence is let in.
Issues: Whether the trial Court erred in dismissing the application for rejection of the plaint filed by the defendants.
Ratio Decidendi: The High Court relied on the following principles: * Order VII Rule 11 of CPC enumerates the grounds on which a plaint can be rejected. As per Order VII Rule 11 (b) of CPC, the plaint can be rejected if the relief claimed is undervalued, and if the plaintiff is required to pay the Court fee within the time to be fixed by the Court, fails to do so. * The averments in the plaint, in this case, disclose that according to the plaintiff, the plaint schedule property is joint family property and they are in joint possession along with defendants 1 and 2. * Since the plaintiffs are claiming joint possession, a fixed Court fee of Rs.200.00 is paid. * The contention of the defendants that the plaintiffs are not in joint possession is a question of fact, which will be decided after evidence is let in.
Final Decision: The High Court dismissed the Civil Revision Petition at the admission stage, holding that the trial Court did not commit any error in dismissing the application for rejection of the plaint.

JUDGMENT

1. Defendants 3 and 4 in the suit filed the above revision against the order dtd. 30/12/2022 in I.A.No.169 of 2022 in O.S.No.103 of 2016 on the file of I Additional District Judge, Kurnool.

2. Respondents 1 and 2 herein, being plaintiffs filed suit O.S.No.103 of 2016 initially against other respondents seeking partition of plaint schedule property. Pending the suit, revision petitioners came on record as defendants 3 and

3. Revision petitioners are sons of 3rd respondent and grandson of 4th respondent herein. After revision petitioners came on record, they filed I.A.No.169 of 2022 under Order VII Rule 11 (b) and (c) of CPC to direct the plaintiffs to value the suit under Sec. 34 (1) of the Andhra Pradesh Court Fee and Suits Valuation Act, 1956 (for short "CF Act") and direct the plaintiffs to pay deficit Court fee by granting reasonable time and failure to comply with the same, to reject the plaint.

4. In the affidavit filed in support of the petition, it was contended interalia that the claim of plaintiffs in the suit is baseless. There is no property within the boundaries mentioned in the plaint. Plaintiffs were never in possession of property much less joint possession at any point of time. The marriage of 1st plaintiff and 2nd plaintiffs was solemnized long back. The property in dispute fell to the share of 1st defendant in partition i.e. uncle in the year 1989, after the marriage of plaintiffs, and hence, filed the application for the reliefs stated supra.

5. Plaintiffs filed counter and opposed the application.

6. Trial Court by order dtd. 30/12/2022 dismissed the application. While dismissing the application, the trial Court observed as follows:

"The Court fee aspect, which is a question of fact, can be decided during the course of trial." "Jointness over the properties in a Hindu Law, shall be presumed until the contrary is established". "It is settled law that a Court can collect Court fee at any stage of the suit".

Aggrieved by the same, the above revision is filed.

7. Heard Sri S.Lakshminarayana Reddy, learned counsel for petitioners.

8. Learned counsel for petitioners would submit that the plaintiffs have not paid Court fee as required under Sec. 34 (1) of the CF Act. He would also submit that plaintiffs were never in joint possession of the property and hence, they have to pay Court fee under Sec. 34 (1), but not under Sec. 34 (2) of the CF Act. He would submit that under Sec. 11 of the CF Act, defendant can bring to the notice of the Court, if the Court fee paid is not sufficient and the plaint can be returned under Order VII Rule 11 (b) of CPC and without considering these aspects, the Court below dismissed the application and thus, prayed to set aside the order.

9. Now, the point for consideration is:

Whether the Court below committed any error in passing the impugned order dtd. 30/12/2022 in I.A.No.169 of 2022 in O.S.No.103 of 2016?

10. Suit, O.S.No.103 of 2016, is filed by the plaintiff seeking partition of plaint schedule property. In the plaint, it was asserted that the plaintiffs are daughters and 1st defendant is the son of 2nd defendant and late Annam Thimma Reddy. Plaintiffs further asserted that plaintiffs and defendants constitute a Hindu joint family and the properties are joint ancestral properties. The father of plaintiffs and 1st defendant died in 1962. After death of father, defendants 1 and 2 are managing and cultivating the schedule property. It was further contended in the plaint that defendants used to give money to the plaintiffs periodically from out of the income derived from plaint schedule property towards their share. Since 1st defendant is denying the share of plaintiff and is trying to alienate the plaint schedule property without knowledge of plaintiffs, they filed the suit seeking partition of plaint schedule property. Plaint schedule property is valued at Rs.9, 35, 96, 000.00. Each of plaintiff 1/4th share is shown as Rs.2, 33, 99, 000.00. Total value of suit is shown as Rs.4, 67,

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