MODI, J.—This is a plaintiffs second appeal against an order of rejection of his plaint under O. VII r. 11 C.P.C. and has been transferred to this Court from the High Court of Bombay as a result of sec. 64 of the States Reorganization Act (Act No.XXXI of 1956).

2. The facts leading up to this appeal may shortly be stated as follows. The minor plaintiff Harishchandras case, as put forth by his next friend Mst. Laxmi, his mother, was that the defendant Rupram and the plaintiffs father Ratanlal were brothers, being sons of one Dudaram. Originally Ratanlal and Rupram lived in a rented house together. Thereafter some twenty years ago, they purchased an open plot of land at an auction from the State of Sirohi for which they had obtained a Patta in their joint names and built a house thereon. After the house had become ready, the defendant occupied a room therein and let out three other Kotries therein to tenants while the plaintiffs father Ratanlal continued to live in the rented house. The plaintiffs case further was that Ratanlal had died ten years before the present suit was filed, that no partition of the suit house had been made in his life-time. The plaintiff was however a minor at the time of his fathers death and in spite of the fact that the defendant had been asked more than once to give a half share of the suit house by partition and to divide the receipts accruing from rent, the defendant paid no heed. Mention must then be made of the allegation made in paragraph ten of the plaint which was to the effect that the defendant was in exclusive possession of the suit house and that he had definitely refused to allow the plaintiff to live therein and therefore a separate application for the appointment of a receiver was being made. On these allegations it was prayed that the plaintiff be put into separate possession of his share of the house by partition. For purposes of court-fee, and that is the question with which we are concerned in this appeal, the plaintiff valued his claim at Rs. 1300/- and put his case in this way. According to him, the value of the house was Rs. 2000/- and the defendant was alleged to have recovered a sum of Rs. 600/- by way of rent thereof and so the plaintiff was entitled to a half share of the total value of Rs. 2600/-that is, Rs. 1300/-, on which he paid ad valorem Court-fee of Rs. 90/-.

3. The defendant resisted the suit and among other pleas with which we are not concerned contended that the house was worth at least ten thousand rupees at the date of the suit and that the defendant had been in exclusive possession of it for the last 20 years and over and the court-fee paid by the plaintiff was insufficient and therefore prayed that the plaint be rejected under O. 7, r. 11 C.P.C.

4. The trial court dealt with this matter as a preliminary issue and came to the conclusion that the suit was at the least of the value of Rs. 8000/- at the date of the suit and the plaintiff should have put in ad valorem court-fee on that basis that is on Rs. 4000/- being the value of his half share and allowed time to him to make up the deficiency in court-fee by or before the 9th October, 1952. On the last-mentioned date, the plaintiffs counsel filed an application that it was not intended to pay the deficit court-fee stamp. Consequently the trial court rejected the plaint by its order dated the 9th Oct., 52. The plaintiff then went in appeal to the District Judge Mehsana at Palanpur who transferred it for disposal to the Assistant Judge, Mehsana, at the same place. The Assistant Judge dismissed this appeal by his order dated the 30th November, 1954. Aggrieved by this decision, the plaintiff filed this appeal before the High Court at Bombay which, as already stated, has been transferred to this court under the provisions of States Reorganization Act, 1956.

5. The only question for decision is whether the finding of the courts below that the plaintiff should have filed ad valorem court-fee under sec. 7 (v) of the Court-fee

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