CHARLAPALLI YADAMMA Vs. MIRYALA GOPAIAH

JUDGEMENT

(1.) The petitioner presented a plaint SR.No.674 of 2003 in the Court of the Junior Civil Judge, Nalgonda seeking the relief of partition and separate possession of the suit schedule property, against the 1st respondent.' She paid the Court fee under Section 34(2) of the A.P. Court Fee and Suits Valuation Act, 1956 (hereinafter referred to as 'the Act'). The Trial Court returned the plaint on taking the view that Court fee ought to have been paid under Section 34(1) of the Act, since it is not established that she is in joint possession with the defendants. Hence, this revision petition.

(2.) Sri Sai Gangadhar Chamarthy, learned Counsel for the petitioner submits that the petitioner is the sister of the 1st defendant and according to her, the suit schedule property is held in joint, by herself and the 1st defendant. It is his case that unless the plaintiff in a given case avers to the effect that he is excluded from the possession of the suit schedule property and seeks the relief of partition and possession of such property, the question of requiring him to pay Court Fee under Section 34(1) of the Act does not arise. He places reliance upon the judgment of this Court in K. Venkata Rangadass v. K. Venkata Krishna Rao, AIR 1982 AP 60, and on the judgment of the Supreme Court in Neelavathi v. N. Natarajan, AIR 1980 SC 691.

(3.) The matter is being disposed of at the admission stage. In view of the judgment of the Madras High Court in Ramaswamy Gounder v. Ambujam, 1987 (1) MLJ 113, and the judgment of this Court in Battula Lakshmi v. Battula Mallaiah @ Lakshmudu, 1994 (1) AWR 274, which are to the effect that the liability of the plaintiff to pay the Court Fee under sub-sections (1) or (2) of Section 34 of the Act needs to be decided only on the basis of the averments in the plaint, this Court feels it is not necessary to issue notice to the respondents, at this stage. Further, it is only a revision against an order returning the plaint, on the adequacy of Court Fee. No right can be said to have accrued to the defendants, under such order.