GOPINATH A Vs. K RAMALINGAM

JUDGEMENT

(1.) THIS Revision Petition is directed against the order made by the Add). Judge. City Civil Court, Bangalore, in O.S No. 1687 of 1983, on 2-12-1985 directing the plaintiff to value certain immovable properties which are the subject matter of the suit and to pay ad valorem Court fee thereon. The plaintiff who is the petitioner herein brought a suit for partition and separate possession of his share He pleaded that he is in possession of the joint immovable properties along with the defendants, but in paragraph 16 of the plaint, he stated that, "the plaintiff submits that the first defendant is in possession of movables described in 'B' schedule." On the basis of this allegation, the trial Court directed that the suit is governed by Sec. 35(1) of the Karnataka Ccurt Fees and Suits Valuation Act and he has to pay ad valorem Court fee in respect of 'B' schedule property, of which, he is admittedly not in joint possession of the same. Aggrieved by this order, the plaintiff- petitioner has come up in Revision The claim of the plaintiff in the suit is that he is entitled to a share in the undivided joint family properties. In such a case the possession of one in law is possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessarv that plaintiff should be in actual possession of the whole or part thereof. Unless it is shown that he is excluded from such possession, it cannot be said that the plaintiff has to pay ad valorem Court-fee under Sec. 35(1) of the Karnataka Court Fees and Suits Valuation Act. THIS position of law is explained by the Supreme Court reported in Neelavathi and Others v N. Natarajan and Others (AIR 1980 SC 691) while interpreting Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act, which is in pari-materia with Section 35 of the Karnataka Court Fees and Suits Valuation Act.

(2.) THE allegations in the plaint do not amount to a plea of ouster or exclusion or from joint possession but what is pleaded is that the defendant is in possession of 'B' schedule property and such a plea is not in-consistent with plea of joint possession. Hence I have no hesitation in setting aside the order passed by the learned Civil Judge and hole that the Court fee paid already sufficient. Petition Allowed Accordingly.