Honble GUPTA, J.–Heard learned counsel for the parties.

(2). By the impugned order, the learned Trial Court has held that the suit as framed is covered by Section 35(1) of the Court Fees Act, and therefore, the plaintiff should pay court fees accordingly. Obviously, if the court fee is not paid, the suit should be dismissed.

(3). The contention of the learned counsel for the petitioner is that on a bare reading of Section 35 as a whole it becomes clear that the present is a suit, which is covered by Section 35(2), and not by Section 35(1).

(4). I may reproduce Section 35 as such, which reads as under:

``Sec. 35 Partition suits.-(1) In a suit for partition and separate possession of a share in joint family who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiffs share of the property.

(2) In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates namely:-

(i) Rupees thirty if the value of plaintiffs share is Rs. 5,000 or less;

(ii) Rupees one hundred if the value is above Rs. 5,

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