A decision on the sufficiency of court fees in an appeal implies that the appellate court found the court fee paid as sufficient, and the principle of res judicata bars a party from raising the question of court fees again after remand.

( 1 ) THE facts of this revision petition are that the plaintiff-applicants instituted a suit against the opponents for partition of property belonging to a joint family consisting of the plaintiffs and the defendants. The plaintiffs claimed that the value of the joint family property was Rs. 61,000/-; that they had one-third share in the property; that they were already in possession of a house belonging to the joint family valued at Rs. 7,000/s and that the defendants were denying their right to any share in the property which was in their possession. The plaintiffs paid a Court-fee of Rs. 10/-under Schedule II, Article 17 (vi) of the court-fees Act. One of the objections which the defendants raised was that the court-fee paid by the plaintiffs was insufficient and that the plaintiffs should have paid ad valorem Court-fee on the valuation of the share they claimed in the property alleged to be the joint family property. The learned District Judge of ratlam, while dismissing the plaintiffs' suit on merits, held that the Court-fee paid by the plaintiffs was sufficient. The plaintiffs then filed an appeal in the Madhya Bharat High Court. That appeal was allowed by a Division Bench of the Madhya Bharat High Court on 4-8-1955 and the case was remanded to the original Court for further trial. The remand order directed that

"the lower Court should allow the defendants to amend the written-statement to incorporate their pleas of limitation and adverse possession. The lower Court should also recast issues if necessary and dispose of the case according to law. "

In the appeal filed in the Madhya Bharat High Court, the question whether the court-fee of Rs. 10/- paid by the plaintiffs in the suit or in the appeal was or was not sufficient, was not raised. When the hearing of the suit was resumed in the lower Court after making of the remand order, the defendants again raised the objection that the Court-fee of Rs. 10/- paid by the plaintiffs was insufficient. The learned District Judge of Ratlam, relying on a Division Bench decision of this court in Santosh v. Rama, AIR 1949 Nag 305, has held that the Court-fee of Rs. 10/- paid by the plaintiffs is insufficient and that the plaintiffs must pay ad valorem Court-fee on the valuation of their share in the property which is in the defendants' possession and from which they have been ousted. The learned District Judge took the view that the decision of his predecessor on the preliminary issue of Court-fees did not preclude him from deciding the question again when the decision of his predecessor dismissing the suit was set aside by the Madhya Bharat High Court in appeal and the case was remanded to the original Court for further trial, and that the effect of the remand order was that the Madhya Bharat High Court set aside the findings of his predecessor on all the issues decided by him. The plaintiffs have now filed this revision petition challenging the correctness of the order of the learned District Judge of Ratlam directing them to pay ad valorem Court-fees.

( 2 ) MR. Bharucha, learned counsel for the applicants, did not dispute that on the allegations made by the plaintiffs they were liable to pay ad-valorem Court-fees, according to the decision in AIR 1949 Nag 305, on the valuation of the share claimed by them in the property alleged to be the joint family property, which is said to be in the possession of the defendants and from which the plaintiffs have been excluded. He, however, contended that it was not open to the learned District Judge to reopen the question of Court-fees when it had been decided earlier in the suit and when the question of the sufficiency of the Court-fees paid by the plaintiffs was not raised in the appeal which the plaintiffs had preferred from the decree of the lower Court dismissing their suit. It was said that when the Madhya Bharat High court accepted the appeal and made an order for remand, it implied a decision by that Court that the Court