ABDUL RATHEEF Vs. MUSTHAF ALI

JUDGEMENT

(1.) This Civil Revision Petition is by the plaintiff, and is to revise the finding recorded by the Subordinate Judge at Badagara, on issue 6 raised in the suit, which relates to the proper court fee payable. Notice was issued to the Government Pleader, who was also heard.

(2.) The suit is for a partition of the plaintiffs three-fourth share of the suit property by metes and bounds, and for the recovery of mesne profits, till partition is made. The plaintiff and the 1st defendant are alleged coshares of the suit property, being the joint donees thereof. The question for decision is, whether the court fee has to be computed on the terms of sub-s.(1) or of Sub-s.(2) of S.37 of the Madras Court Fees and Suits Valuation Act, Act XIV of 1955; Sub-s.(1) is applicable to a suit for partition and separate possession of property, by a plaintiff who has been excluded from possession, while sub-section (2) is applicable to a suit for partition and separate possession of property, by a plaintiff who is in joint possession of it. On a reading of the plaint, the learned Subordinate Judge has reached the conclusion, that Sub-s.(1) is applicable.

(3.) This provision can apply only, if the case pleaded, is one of exclusion of the plaintiff from possession. Mere appropriation of the profits of the property or even exclusive use or possession of the property by one cosharer, does not amount to exclusion of other cosharers from possession, for which an intention on the part of the cosharer to keep the others out of possession, such intention manifesting itself in some manner and to the knowledge of the others, is an essential element. A case, decided by the Privy Council Radhaba Baloba Vagh v. Abu Rao Bhagwant Rao Shirob reported in AIR 1929 P. C. 231 under Art.127 of the Indian Limitation Act, 1908, with respect to a suit for a partition, by a person excluded from joint family property, may be referred to by way of analogy. On the other hand, it is elementary, that the possession of joint property by one cosharer is possession on behalf of all the cosharers, in the absence of ouster.