The plaintiff in a suit for partition impugns Ext.P2 findings entered by the learned Subordinate Judge on issue No.10 which was one regarding the propriety of the valuation of the suit for the purpose of court fee. Ext.P1 is copy of the plaint which will show that the suit has been valued under Section 37(2) of the Court Fees and Suits Valuation Act on the allegation that the suit properties are in the joint possession and enjoyment of the plaintiff and the defendants.

There were altogether 26 items of properties sought to be partitioned and as regards item Nos.1 to 8 and 11 to 26 the claim of the plaintiff was that the entire consideration for acquisition of those items was paid by the plaintiff and the defendants 1 and 2 out of their joint funds. As against item Nos.9 and 10 the claim was that those items belonged to the plaintiff and defendants 1, 2 and 8 to 11, having been acquired with their joint funds. Several contentions were raised by the respondents including the contention that the suit has not been properly valued and issue No.10 was raised on the basis of that contention. Even though several decisions of this court laying down that it is the allegations in the plaint which are to be considered for the purpose of determining the payable court fee were cited before the learned Subordinate Judge and the Subordinate Judge did consider those decisions, ultimately relying on the judgment of a learned Single Judge of this court in Ayisha v. Kunhimayan Haji (ILR 1966 Kerala 17), the learned Subordinate Judge inferred that in respect of plaint schedule item Nos.3 to 10 and 12, 15 and 24 the defendants are in possession and concluded that the suit will have to be valued under Section 37(1) of the Court Fees and Suits Valuation Act, since it was conceded that documents in respect of those items stand in the name of the defendants.

2. Heard Mr.D.Krishna Prasad, learned counsel for the petitioner and Mr.S.V.Balakrishna Iyer, Senior Counsel for the contesting respondents.

3. Making submissions on the basis of the grounds raised in the Writ Petition, my attention was drawn by Mr.Krishna Prasad to various decisions including those reported as Kunjanni v. Jacob (1992(2) KLT 232), Abdul Razack v. Anjaneyan (2002(2) KLT 670), Thankamma v. Unniama Antharjanam ( 1964 KLJ 546).

4. Learned Senior counsel for the respondent would support the impugned order on the basis of the judgment in Ayisha's case (supra).

5. Ext.P1 is copy of the plaint and a perusal of paragraphs 3, 6 and 9 therein will clearly show that it is specifically averred by the plaintiffs that the suit properties including plaint A schedule item Nos.3 to 10, 12, 15 and 24 are in joint possession of the parties and that consideration for the acquisition of those properties was paid by the plaintiff and the defendants 1 and 2 out of their joint funds.

However, it is conceded in paragraphs 5 and 6 that the title deeds in respect of items 3, 4,5, 6 to 10, 12 and 15 to 24 stand in the names of the defendants. It is noticing this aspect of the matter that the learned Judge relied on the judgment of this court in Ayisha's case(supra) and held that it has to be presumed that the plaintiff is out of possession.

6. It is trite that for the purpose of determination of the payable court fee, all that is required is to look into the averments in the plaint. The contentions raised by the defendants in the written statement are not to be considered at all. Unless it is possible to say on the allegations in the plaint itself that the plaintiff is out of possession of the plaint schedule properties or any portion thereof, in a suit for partition valuation under Section 37(2) by the plaintiff paying fixed court fee will have to be accepted. Learned Subordinate Judge has observed that the facts which obtain in the present suit are comparable to those in Ayisha's case (supra). A careful reading of the judgment in Ayisha's case would show that, that was a case for partition of the proper