DAS GUPTA, J. :- The petitioner instituted a suit for partition on the allegation that along with the opposite parties he was in joint possession of three plots of lands C.S. Plots Nos. 9313, 9314 and 9315 of Mouza. Bali. In view of the allegation and the nature of relief claimed he paid fixed court-fees of Rs. 15. After both parties had examined their witnesses and produced documents and closed their evidence the learned Subordinate Judge heard the arguments of the parties and then passed an order directing the appointment of a commissioner to ascertain the proper valuation of the suit property being of opinion that ad valorem court-fees on the value of the property was payable on the plaint. It is against this order that the plaintiff has filed the application and a rule was issued on the opposite parties to show cause why this order should not be set aside. The ground for the learned Subordinate Judges decision that ad valorem court fee was payable was a statement made by the plaintiff in his evidence that he was not in possession of the suit property.

2. Mr. Banerjee for the petitioner has contended and there can be no doubt rightly, that the question as to what court f