” This writ petition under Articles 226 and 227 of the Constitution of India is directed against order dated 19.09.2014 passed by the trial court, whereby, the application filed by the respondents under Section 11(2) & (3) of the Rajasthan Court-Fees and Suit Valuation Act, 1961 (' the Act of 1961” ) has been accepted and the plaintiff has been directed to pay court fees on the market value of the suit property.

2. The facts in brief may be noticed thus : the plaintiff-petitioner filed a suit for partition on 02.01.2012 claiming the suit property belonging to her ancestor Baldev Das, who died intestate prior to 1956; it was claimed that at the time of death of Baldev Das, he was survived by his son Ganga Das and grandson Raman Lal; Ganga Das also died intestate prior to 1956 and, therefore, the entire property vested in Raman Lal, who died intestate on 04.02.1976; at the time of his (Raman Lal) death, he was survived by two daughters including the petitioner and one adopted son Prem Narayan and, therefore, in the property all the three children had 1/3rd share; the defendant Nos. 1 to 4 were children of Prem Narayan Daga and defendant Nos. 5 to 11 were children of her sister Jiya Devi.

3. It is claimed that the suit was filed on 02.01.2012 and on 02.01.2012 itself at about 05:15 p.m. the defendant Nos. 1 to 4, children of Prem Narayan, transferred the suit property and, therefore, the petitioner filed amendment application, which was allowed and the suit was permitted to be amended and the transferrees were impleaded as defendant Nos. 13 to 20.

4. On behalf of the said defendant Nos. 13 to 20 an application under Section 11(2) & (3) of the Act of 1961 was filed, inter alia, indicating that the petitioner has sought declaration and court fees is payable under Section 24(a) & (b) of the Act of 1961 and the suit property has been valued at the time of registration at Rs. 1,23,86,262/-, on which, the plaintiff is required to pay the court fees.

5. A reply to the application was filed by the petitioner, inter alia, indicating that the transfer was made during pendency of the suit, which has necessitated the amendment and that the said aspect can be determined after framing of issues, the court fees paid is sufficient.

6. The trial court after hearing the parties, came to the conclusion that from the perusal of the plaint, it was apparent that after amendment, the plaintiff has sought relief of cancellation of sale deed and declaration of right of preemption and has indicated the market value in para 10 of the plaint at Rs. 1,25,00,000/-; under Section 24(a) and (b) of the Act of 1961 the fees is to be calculated at the market value and, consequently, allowed the application and passed the directions as noticed hereinabove.

7. It is submitted by learned counsel for the petitioner that the trial court was not justified in deciding the application at the present stage and the issue could have been determined after evidence was led by the parties; it was further submitted that as the plaintiff” s case is not of exclusion, the provisions of Section 35(2) of the Act of 1961 would be applicable and Section 24(a) and (b) of the Act of 1961 has no application to the present case.

8. A plea was raised that the defendants have no right to raise the plea regarding the court fees, as it is only the State, which can raise such objection; further with reference to proviso to Section 6(1) of the Act of 1961, it was submitted that the relief sought is only ancillary to the main relief, which is partition and the market value can only be determined in terms of Section 7 of the Act of 1961.

9. Reliance was placed on Suhrid Singh alias Sardool Sing v. Randhir Singh & Ors. : (2010) 12 SCC 112 : (AIR 2010 SC 2807), Smt. Meena alias Hema v. Smt. Komal Devi & Ors. : AIR 2004 RAJ 77, Iqramuddin & Ors. v. Nizamuddin : AIR 1991 RAJ 42, Daulatram v. State of Rajasthan : RLW 1967 401, Tara Devi v. Thakur Radha Krishna Maharaj : AIR 1987 SC 2085, Khema & Ors. v