HARI SHANKAR, J. :- This is a court-fee matter in a second appeal by the plaintiffs.

2. In order to appreciate the question of court-fee raised before us it is necessary to state a few facts. The plaintiffs brought a partition suit in respect of a house in which they claimed a moiety share. It was alleged in the plaint that the plaintiffs were in joint possession of their half share ever since its purchase on 11-1-1937, from the father of the defendants for a sum of Rs. 1,500/-

3. The above suit was contested by the defendants-respondents. They denied the fact that the plaintiffs were co-owners of the house. They further denied that the plaintiffs were in possession of the share claimed by them. The question whether the plaintiffs were in joint possession of the house was the subject-matter of issue No. 3, which ran thus :

"Are the plaintiffs in possession of the house ? If not, what is the effect ?"

Both sides led evidence on this issue. On the evidence produced in the case the trial Court held that the plaintiffs had not established their joint possession over the house.

4. On the question of title also, the trial court held that the plaintiffs had failed to establish that they were co-owners in the property in suit.

5. Dissatisfied with the decision of the trial Court the plaintiffs went in appeal before the District Judge of Sitapur, who dismissed the appeal and affirmed the findings of the trial Court.

6. The plaintiffs have now come up in second appeal. On the presentation of the memorandum of appeal the Stamp Reporter of this Court made a report about the deficiency in court-fee not only in this court but in the two Courts below also.

In the report it was pointed out, on the basis of the findings of the two Courts below, that as the plaintiffs were not in joint possession of the house and as the title to the house was also denied, the case falls under the second part of Sub-Section (vi-A) of the Court-fees Act, which requires the payment of ad valorem court-fee on the full value of the share claimed. Since the plaintiffs had paid court-fee on one-fourth value of the share claimed under the first part of Sub-Section (vi-A) of S. 7 a deficiency of Rs. 414/6/- was found due against the plaintiffs as the total deficiency payable by them in the three Courts.

7. When the report was placed before the Taxing Judge of this Court, it was urged on behalf of the appellants that the question whether the plaintiffs were in joint possession of the share was still an open question to be decided in second appeal, and until that question was decided the plaintiffs could not be asked to pay ad valorem court-fee on the full value of the plaintiffs share.

In support of this contention the appellants relied on the case of - Parmeshur Din v. Hargobind Prasad, AIR 1939 Oudh 90 (A).

Learned counsel for the State, however, relied on a later decision in - Muneshwar Bakhsh v. Har Prasad, AIR 1945 Oudh 207 (B) for the contrary proposition that where on the finding of the two Courts below it appears that the plaintiff was out of possession of the share claimed in a partition suit, he should be asked to pay ad valorem court-fee on the full value of his share before the appeal could be admitted for hearing on merits. In view of the general importance of the question the Taxing Judge referred the matter for consideration by a Full Bench.

8. It is not disputed that the question of court-fee in this partition suit is governed by Sub-Section (vi-A) of S. 7, Court-fees Act, which was inserted by S. 11 of the U.P. Amending Act 19 of 1938, which runs thus :

"7. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :

(vi-A) In suits for partition......according to one quarter of the value of the plaintiffs share of the property, and according to the full value of such share if on the date of presenting the plaint the plaintiff is out of possession of the property of which he claims to be a co-parcener or co-