KANJIROLI ABDUL RAZACK Vs. VELIKKAL ANJANEYAN

JUDGEMENT

(1.) Against the order regarding the additional issue No. 3 in O.S. No. 2 of 1997 on the file of the Sub Court, Kozhikode, this revision is filed by the plaintiff. The plaintiff filed the suit for partition of 1/7th share over the plaint schedule property. An additional issue was raised regarding court fee. The plaintiff paid court fee under S.37(2) of the Kerala Court Fees and Suits Valuation Act. The Court below found that the plaintiff has no joint possession over the plaint schedule property and therefore, the court fee paid under S.37(2) of the Kerala Court Fees and Suits Valuation Act is not correct. Challenging the said order, this revision petition is filed.

(2.) The only point to be considered is whether the impugned order is liable to be set aside.

(3.) The petitioner filed the suit for partition and separate possession of 1/7th share over the plaint schedule property with mesne profits and for consequential reliefs. As per the plaintiff, he has purchased 1/7th right over the plaint schedule property from the 8th defendant who got it from the first defendant by auction sale in pursuance of the decree passed in O.S. No. 254 of 1984. The plaintiff along with the 8th defendant filed an application under O.29, R.95 CPC to put him in possession of the first defendants 1/7th right in the plaint schedule property in E.P. No. 129 of 1993. The said E.P. was closed as barred by limitation. The court below, based on the decision in Sidheshwar Mukherjee v. Budeshwar Prasad Narain Singh ( AIR 1953 SC 487 ) found that auction purchaser of undivided share will have no right to joint possession. So, the joint possession pleaded was found against and observed that the court fee paid under S.37(2) of the Kerala Court Fees and Suits Valuation Act is not correct. It is averred in the plaint that the plaintiff is a coowner of the property and in joint possession with the defendants. Before passing the order, the court below ought to have considered the averments in the plaint. Exclusion from enjoyment of receipt of income is totally different from exclusion from possession.