BATTULA LAKSHMI Vs. BATTULA MALLAIAH ALIAS MAHA LAKSHMUDU

JUDGEMENT

(1.) This revision is filed against the order of the District Munsif, Chintalapudi taking up issue No.2 regarding the Court-fee as a preliminary issue and holding that the plaintiff shall pay Court-fee under Sec.34(1) of the Act. The plaintiff filed the suit for partition and valued the suit and paid the Court-fee under Sec.34(2), alleging that she is in joint possession of the property. The defendant is the brother of the husband of the plaintif. She claims partition of her half share in the suit property contending that it is a joint family property. The lower Court held that from the plaint it is clear that the respondent is not in possession and enjoyment of the property and so she has to pay Court-fee under Sec.34(1) of the Act.

(2.) The learned Counsel for the petitioner Mr. S.R. Sistla contended that the Court-fee has to be determined on the averments made in the plaint, that in this case the plaintiff has clearly stated that she is in joint possession of the suit property along with the defendant after the death of her husband. He has also contended that in respect of Co-owners the presumption is that one co-owner is in possession on behalf of the other co-owner unless it is established specifically mat there is ouster. Therefore, he contends that in view of the plaint averments that the plaintiff is in joint possession, the Court-fee paid under Sec.34(2) is correct. I have gone through the various averments of the plaint, a copy of which is delivered to me by the learned Counsel for the petitioner. The plaintiff has stated that shejs in joint possession of the suit property. Of course at one stage there is an averment that the defendant offered to give her some maintenance, but failed to give any maintenance. There is no averment that she agreed to receive maintenance in lieu of her share in the property or that she has been ousted from possession. In these circumstances, since the plaintiff represents that she is in joint possession of the property on the basis of the plaint averments the Court-fee paid u/s.34(2) of the Act is correct.

(3.) The revision is allowed and the order of the lower Court directing the plaintiff to pay Court-fee under Sec.34(1) is set aside. No costs.