The main legal point established in the judgment is the distinction between a finding of fact necessary to give relief to a party and a declaration in its true and proper sense, and how it applies to determining the court-fees payable for a suit for partition involving co-owners and strangers.

Das, J.

1. This appln. in revn. raises the question of court-fees payable on the plaint--namely if court-fees are payable under Article 17 (vi) of Schedule II Court-fees Act, as in a simple suit for partition or ad valorem court-fees as in a suit for title, where a declaration of title with a consequential relief is asked for.

2. The peters, before us were the pltfs. in the Ct. below. The facts givitg rise to the appln. are the following. The petnrs. brought the suit, which was in form a suit for partition only, in respect of two houses situate in the town of Siwan. The petnrs. alleged that their share of the two houses was to the extent of 12 annas & the share of deft. 1, who was the karta of the joint family of defts. 1 to 8, was to the extent of 4 annas only. In para. 8 of the plaint the petnrs. stated that

"deft. 1, with an ulterior motive, executed a fictitious sale-deed in favour of deft. 8 his wife, without receipt of any consideration, & later got a colourable sale deed in favour of deft. 9 & a colourable zarpeshgi deed in favour of deft. 10 & another colourable sale-deed in favour of deft. 11--all without any consideration executed either by deft. 8 or by deft. 1 or by both."

It was further averred that the aforesaid sale deeds & zarpeshgi deed executed by defts. 1 & 8 in favour of defts. 9 to 11 were without consideration & of the nature of sham transactions. It may be observed here that defts. 9 to 11 were strangers to both families& were not co-sharers or co-owners against whom partition could be claimed. In para. 9 the petnrs. stated that they did not want to keep the two houses joint & requested the defts. to partition the two houses. The defts. did not agree thereupon, the petnrs. brought the suit, & the main relief which the petnrs. claimed was put in the following form :

"A decree for partition & separation of pltfs. three-fourth share in the properties described below & separate possession over the same be passed in favour of the pltfg."

3. The question that arose for consideration by the learned Subordinate Judge, in whose Ct. the suit was instituted by the aforesaid plaint, was the true nature of the suit: that is, whether the suit was a pure & simple suit for partition of the two houses as between co-owners, or a suit for a declaration of title as against strangers in the guise of a suit for partition. The learned Subordinate Judge held, on a consideration of the plaint, that so far as the strangers were concerned, the suit was really a suit for title, namely, a suit for a declaration of title & possession. In that view of the matter he directed the petnrs. to pay ad valorem court-fees. It is against this order of the learned Subordinate Judge that the present appln. in revn. is directed.

4. Mr. Sarjoo Prasad appearing for the petnrs. has contended before us that the suit was really a suit for partition, pure & simple; because if one co-owner made certain alienations, those alienations were not binding on the petnrs. & the petnrs. could get the only relief which they had asked for, namely, partition, without any adjudication as to whether the transfers in favour of the strangers made by one of the co-owners were genuine or not. In the alternative he has contended that in order to get the relief of partition, a finding as to the transfers in favour of the strangers might be incidentally necessary, but such a finding cannot be called a relief by way of a declaration in its true sense. Learned counsel has taken us through a large number of decisions In the F. B. decision of this Ct. of Ramkhelawan Sahu V/s. Surendra Sahi, 16 Pat. 766 : (A. I. R. (25) 1938 Pat. 22 D. B.) what is really meant by a "declaration" in its true sense has been explained, & it is pointed out that a mere finding which may be necessary in order to give relief to a party is not necessary a declaration in its true sense. Mr. Sarjoo Prasad has drawn pointed attention to the observations made at the bottom of p. 783 pp. 784 & 785 of