1. Being aggrieved by the order dated 27 .9.10 passed by Civil Judge, Class-II, Dhar in Civil Suit No. 38-A/10 whereby the application filed by respondent Nos. 1,3,4 & 5 under order VII Rule 11 CPC was allowed and the petitioner was directed to pay the requisite court fee, present petition has been filed.

2. Short facts of the case are that the petitioner filed a suit for declaration, partition, possession and mesne profit alleging that the respondent No.3 is the mother of petitioner, while respondents No.1 & 2 and 4 & 5 are the brothers and sisters respectively. It was alleged that the land bearing survey Nos. 113/1, 113/2, 113/2/1, 113/2/2, 113/2/3, 173, 210/1, 256/1, 401, 402/1, 403/2, 404, 419/1 and 419/3 are the land which came into the share of Hiralal in partition, of which the land revenue is Rs. 81.80, in which petitioner is having 1/6th share. It was alleged that for the purpose of court fee, the suit is valued on the basis of which 1/6th of the land revenue of Rs. 81.80 multiplied by 20 i.e. 272.06 of which the court fee of Rs. 100/- is paid. Upon notice an application was filed by the respondents No.1, 3, 4 & 5 wherein it was alleged that the suit has not properly been valued and the court fee is not accordingly paid, hence the suit be dismissed. After hearing the parties application was allowed, against which present petition has been filed.

3. Learned counsel for the petitioner argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that the petition filed by the petitioner be allowed and the impugned order be set aside.

4. For the purpose of court fee relevant provisions are section 7 (v) and section 7 (vi-a) of Court Fees Act which are as under :-

Section 7 (v) -- for possession of lands, houses and gardens -- in suits for possession of lands, houses and gardens, according to the value of the subject matter; and such value shall be deemed to be n where subject matter is land and

(a) such land is assessed to land revenue or land revenue is payable in respect of such land-twenty times the land revenue so assessed or so payable;

(b) such land forms a part of land which is assessed to land revenue or in respect of which land revenue is payable twenty times of the land revenue proportionately worked out for such part of land;

(c) such land is not assessed to land revenue-twenty times of the land revenue worked out at the rate of [five rupees] per acre;

Section 7 (vi-a) in suits for partition -

(a) according to one half of the value of the plaintiffs share of the property; and

(b) 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-owner and his claim to be a co-parcener or co-owner on such date is denied.

5. In the matter of Gujabai v. Salubai. AIR (34) 1947 Nagpur 243 it has been held that where in a suit the plaintiff, who is a co-owner whose right as a co-owner is challenged and who is excluded from possession, claims possession of his share of the property as a co-owner and wants his share to be partitioned off, though partition is claimed, it can still be regarded as a suit in ejectment and, therefore, is primiarily a suit which falls under section 7 (v). In the matter of Ganesha v. Radhelal, 1972 MPLJ Short Note-78 wherein in a suit for partition, possession and mesne profits in respect of lands of the defendants joint family, the Plaintiffs claim was decreed and the appeal preferred by the defendants was dismissed inter alia on the ground that court fee ought to have been paid on the market value, this Court held that defendants had paid court fee on the basis of 20 times the land revenue. It was further held that since the decree did not in terms direct delivery of possession of a portion of a Khasra number, but it directed demarcation of 1/4th share of the plaintiff, therefore court fee was p