BHARAT DAS Vs. KAPILDEO PRASAD GUPTA

JUDGEMENT

(1.) In this application on be-half of the defendant second party, the question that arises for consideration is as to whether the order of the trial court holding that the petitioner cannot be permitted to defend the suit of the plaintiffs-opposite first party for partition with respect to some of the properties on the plea that the same were not the joint family properties, but were his exclusive properties, unless he paid ad valorem court-fee thereon, can be sustained.

(2.) The short facts of the case are as follows : The plaintiffs opposite first party instituted a suit for partition of the suit properties claiming one-seventh share therein on the allegations that the plaintiffs and defendants first party formed a joint Hindu Mitakshara family and defendant No. 1 was the Karta of the same. Plaintiffs further stated that defendant No. 1 acquired some agricultural lands (item No. 3, Schedule III of the plaint) jointly with defendants second party in equal share. The contesting defendants in their written statement seem to have almost supported the case of the plaintiffs for partition and stated that in case of partition, a separate patti of each of the members of the defendants first party may also be carved out. The stand of the petitioner (defendant No. 7) with respect to the property of Schedule III however was that the property acquired in the name of defendant No. 6 was not the joint family property of the plaintiffs, rather defendant No. 6 was only a benamidar of Ful Kumari Devi, his wife, with respect to certain other properties, his case was that they were the exclusive properties of the aforesaid Ful Kumari Devi and some other plots were his own exclusive properties and in his possession. The petitioner challenged the maintainability of the plaintiffs' suit on only a fixed court-fee and made an application for directing them to pay ad valorem court-fee.

(3.) By the impugned order, the learned Additional Subordinate Judge held that the suit for partition on payment of a fixed court-fee only was maintainable and the plaintiffs were not required to pay ad valorem court-fee. He has, however, taken a view that inasmuch as the petitioner toad set up a title in his own self in some of the properties in suit, "the same amounted to a counter claim in the nature of a cross action and, therefore, he was liable to pay ad valorem court-fee on the said claim." The petitioner has, therefore, come to this Court against this order.