MNAGENDRIAH Vs. MRAMACHANDRIAH AND

JUDGEMENT

(1.) The plaintiff brought a suit in the Court of the District Judge, Bangalore for a declaration that he is entitled to a half share in the plaint schedule properties and for being put in possession of his half share after division. The defendant denied that he and the plaintiff were members of a joint family. He disclaimed interest in certain items which the plaintiff alleged belonged jointly to himself and the defendant and he claimed that he himself was the sole and absolute owner of the other items described in the schedule to the plaint and was in exclusive possession of those items. The plaintiff paid a fixed court-fee of Rs. 50/- on the plaint under Article 11(B) of Schedule II, Mysore Court-fees Act. This was at that stage proper and sufficient and the case reported in -- '44 Mys HCR 203' (A) where it has been held that where a co-owner, co-sharer or co-tenant alleges that he is in joint possession of the property in suit and wants his share to be separated and put into his possession, a fixed court-fee under Article 11 (B) is sufficient is fully in favour of the plaintiff in this matter. At p. 213 it is observed that even if he is in possession constructively if not actually then a fixed court-fee would be sufficient. All the relevant cases in British India and in Mysore which had been decided by that date have been discussed in that judgment and we are bound by it. And if we may say so with respect, that decision appears to be correct and has not been questioned so far.

(2.) The learned District Judge who heard the present suit found on one of the issues that the plaintiff was not in joint possession of the properties except items 2, 9 and 10 and that he would have to pay court-fee in respect of the other items of properties and that the court-fee already paid by him was not sufficient. He made a decree in favour of the plaintiff declaring that he is entitled to a one-third share in item 2, and the entire items 9 and 10 of the plaint schedule properties and dismissed his suit in regard to the other items. The plaintiff has come up in appeal to this Court and has paid a similar court fee of Rs. 50/- as under Article 11 (B) of Schedule II.

(3.) The office has raised the question of the sufficiency of the court-fee and the point put against the appellant is that though the plaint may be deemed to have been properly and sufficiently stamped when it was filed, as there has now been a finding of the lower Court that the plaintiff is not in joint possession of certain items, whether he should not be required to pay court-fee 'ad valorem' in respect of those items both in this Court and the Court below before his appeal is admitted and registered as a regular appeal.