The court clarified the requirement for plaintiffs seeking partition of a property, a portion of which is in the possession of trespassers, to pay ad valorem court fee for ejectment on the entire value of the property in the hands of the trespassers, rather than only on the value of their shares in the property.

1. The question posed in this revision, which, on reference by a learned single judge, has been placed before us, is whether the plaintiffs, who seek partition of the plaint schedule property, a portion of which is in the possession of trespassers (defendants 9 to 13), are required, as directed by the lower court, to pay ad valorem court fee for ejectment on the value of the entire property in the hands of the trespassers, or it would be sufficient if they pay ad valorem court fee on the value of their shares of the portion of the property trespassed upon. The plaintiffs have already paid fixed court fee for partition under S.37 (2) of the Kerala Court Fees and Suits Valuation Act, 1959, and the present controversy confines to the correct ad valorem court fee that is payable with respect to the portion of the property remaining in the hands of the trespassers.

2. A partition suit simpliciter presupposes unity of title in the plaintiff and the defendants; and the claim is for separation of the plaintiff's share from the joint possession of the tarwad or of all the co-owners, as the case may be, for enjoyment to the exclusion of the other sharers. In all such cases, the court fee payable, undoubtedly, is as provided in S.37 (2) of the Court Fees Act. A suit for partition and separate possession of a share of the joint family property or of property owned jointly or in common by a plaintiff who has been excluded from possession of such property is of another category; and the court fee payable in such a case is in accordance with the provisions contained in S.37(1) of the Act. The case on hand is of yet another category, inasmuch as a portion of the plaint schedule property is in the possession of neither the plaintiffs nor the other members of the joint family (defendants 1 to 7), but in the hands of strangers.

3. It cannot be denied, and it is not disputed also before us, that there cannot be a partition of a property unless it is brought into the hotch-pot of the joint family or of the co-owners, as the case may be. It is, therefore, necessary in this case to eject the trespassers from the portion of the property which is alleged to have gone out of the possession of the joint family before partition could be effected. Placing reliance on the wording "fee shall be computed on the market value of the plaintiff's share" in sub-section" (1) of S.37 of the Act, the argument advanced by the learned counsel for the revision petitioners is that the plaintiffs need pay court fee for ejectment only on the value of their shares in the portion of the property in the bands of the trespassers. The counsel has also attempted to draw an analogy from the provision for cancellation of decree and documents contained in sub-section (4) of S.37, which reads as follows:

"Where in a suit falling under sub-section (1) or sub section (2) the plaintiff or the defendant seeks cancellation of decree or other document of the nature specified in S.40, separate fee shall be payable on the relief of cancellation in the manner specified in that section "

As far as the words "plaintiff's share" appearing in sub-section (1) of S.37 are concerned, we have to bear in mind that the position is quite different from the present case. As we have already indicated, sub-section (1) of S.37 is made applicable to a case where the plaintiff is excluded from possession by the other members of the joint family or other co-owners, and, therefore, it cannot be applied to a case where the property sought to be partitioned is in the hands of trespassers. Sub-section (4) dealing with the cancellation of decrees and documents visualises a different situation. No question of recovering actual possession, which is a pre-requisite for partitioning the property already gone out into the possession of trespassers, arises in such cases. In effect, it requires only a declaration that such a decree or such a document, to the extent to which it relates to the plaintiff, is cancel