RAMAIAH THEVAR Vs. SHANMUGAVEL THEVAR AND ORS.

JUDGEMENT

(1.) The plaintiff in O.S. No. 18 of 1977 on the file of the District Munsif, Shencottah is the petitioner in the revision. The respondents herein are the defendants in the said suit. The plaintiff laid the suit for partition and separate possession of his one fourth share in the suit properties. The necessary averments that the plaintiff is in joint possession of the suit properties have been made in the plaint and the plaintiff valued the suit for the purposes of Court -fees and jurisdiction under Sec. 37(2) of the Tamil Nadu Court -fees and Suits Valuation Act XIV of 1955, hereinafter referred to as the Act. Defendants 2 and 3 remained ex parte. The 1st defendant filed a written statement denying the right in and the joint possession of the suit properties, claimed by the plaintiff. The 4th defendant, who is an alienee of one of the items of suit properties from the first defendant, also raised a similar contest. On the pleadings various issues were framed and issue No. 6 reads as follows : Whether the Court fee paid is correct? Obviously, defendants 1 and 4 seemed to have pressed for a decision on this issue, as a preliminary issue. The Court below by orders dated 1st day of November, 1977 rendered its decision on this issue and it held that the suit ought to have been valued under Sec. 37(1) of the Act; and directed the plaintiff to pay Court -fees under Sec. 37(1) of the Act. The present revision is directed against the orders of the Court below.

(2.) In my opinion, the Court below has committed an error in deciding the matter as it did without adhering to the well recognised principles as to valuation and payment of Court fees in suits of the present nature. Admittedly no evidence, oral or documentary, has been placed before the Court below for consideration on this questions; and the trial has not proceeded on the other issues. It is well -accepted that in these matters, plaint allegations are the determining factors. It has not been stated anywhere in the plaint that the plaintiff has been excluded from joint possession. There seems to be no exchange of notices, indicating the existence of a dispute anterior to the suit, to the plaintiff's claim for joint possession. It is true that the defendants 1 and 4 have filed written statements, denying the plaintiff's claim for joint possession. But the plaintiff has filed reply statements, and he has not given up his case of joint possession. Then it becomes incumbent for the Court at the full fledged trial of the suit to consider the question as to whether there has been an actual ouster as pleaded by the defendants. If after the full -fledged trial, the Court comes to the conclusion that the plaintiff's case of joint possession in the plaint is not borne out by the evidence, the course to be adopted is to dismiss the suit of the plaintiff, unless he amends the plaint suitably and pays the requisite Court -fees under Sec. 37(i) of the Act. In such matters, it is not safe and advisable to decide the issue on a consideration of the pleadings alone without proper and sufficient materials disclosed and placed before Court. In the present case no evidence has been adduced by the parties on this issue. It cannot be stated that this issue is not interlinked with other issues.

(3.) Panchapakesa Ayyar, J. in Varadarajulu Reddiar v/s. Venkata Krishna Reddiar and Ors. : (1958) 1 MLJ 199 observes as follows: