Thottathil B. Radhakrishnan, J.

Defendants 5 to 11 in a suit for partition are the appellants.

2. Plaintiffs sued on the assertion that they and defendants are in joint possession. Hence, they paid court fee under Section 37(2) of Kerala Court Fees and Suits Valuation Act, 1959, for short, 'C.F Act'. The appealing defendants did not claim any share or pay court fee in terms of sub-section (3) of Section 37 of the C.F Act, but pleaded that they are in exclusive possession of a particular parcel out of the suit properties and that the said parcel cannot be subjected to partition. Alternatively, they claimed reservation in case of partition being ordered. Trial court passed a preliminary decree overruling the plea of the appealing defendants as to their exclusive rights. Hence this appeal.

3. The plaintiffs and the non-appealing defendants object to this appeal on the ground that it does not lie to this Court. They state that the plaintiffs had valued their share at Rs. 1,07,128/- and, therefore, that is the value of the subject matter of the suit and hence, in terms of Section 13 of the Kerala Civil Courts Act, 1957, for short, 'C.C Act', the appeal would lie only before the District Court and not before the High Court. In support, they rely on the precedent Valsalan v. Kaumudi, 1982 KLT 525 (DB).

4. Per contra, learned counsel for appellants argued that there is noticeable distinction between the absence of the phrases "value of the subject matter" or "market value" in sub-section (2) of Section 27 of the C.F Act, while such provisions exist in Section 37 (1) of that Act which governs a suit for partition on the plea of the plaintiffs being out of possession. Sections 11 & 13 of the C.C Act are pointedly relied on to argue that while determination of jurisdiction depends upon the jurisdictional value based on the value of the subject matter of the suit, the payment of court fee under Section 37(2) of the Court Fees Act cannot be treated as conclusive on the issue of jurisdictional value.

5. We see that Valsalan (supra) was rendered in 1982 considering the spectrum of precedents from Mallayya v. Jagannadhamma, (1941) 2 MLJ 567, to state that in a suit for partition by a person in joint possession, the valuation for the purpose of jurisdiction is the market value of the plaintiffs share. We also see the recent Bench decision of this Court in Ramanan v. Chitrasenan, 2007 (2) KLT 11, inter alia, stating that-"jurisdiction of the appellate court is decided on the basis of Section 13 of Civil Courts Act and not on basis of Section 52 of Court Fees Act and that valuation of the suit is static and it decides the forum of appeal". The learned Judges rightly sounded the word of caution, that the valuation for the purpose of jurisdiction in cases where specific provisions is made in the C.F Act for valuation of a suit, anomalous situations may arise.

6. Reverting to the case in hand, as already noted, the appealing defendants do not claim any share. The plaintiffs stated in the plaint that the market value of plaint B schedule property (less one year land tax) is Rs. 7,49,900/-. Plaintiffs' one fourth share was valued at Rs. 1,07,128/-.

7. Section 7(4) of the Court Fees Act provides -

"Where the subject-matter of the suit is only a restricted or fractional interest in a property, the market value of the property shall be deemed to be the value of the restricted or fractional interest. "

8. The subject-matter of a suit for partition, insofar as the plaintiffs who assert joint possession is concerned, is the fractional interest that they claim in the property which is sought to be partitioned. The cause of action for such a litigation is built on the fundamental bundle of facts generated from the assertion that they are entitled to a share in the property. What they claim is the share that they seek to be allotted separately. In such a suit, the plaintiffs' concern is only to get their share. Thus, the subject matter of such a suit would o