KARIA NACHI BIVI Vs. ALLAPICHAI

JUDGEMENT

(1.) This second appeal raises a question as to the court-fee payable on the plaint. There is no doubt room for some suspicion that the plaint has been so drafted as to avoid inconvenient facts and make it appear that it is not necessary to pay a higher court-fee than the plaintiff paid in the first instance. But I do not think that even such a suspicion will justify the departure from the well established principle that for purposes of the calculation of court fee, the Court must take the allegations in the plaint to be prima facie correct.

(2.) On the pleadings in the case, I think a distinction ought to have been drawn between the properties which have admittedly been alienated by the 1 defendant and properties which are in his possession in his own right. So far as the former set of properties id concerned, the plaintiff cannot claim to treat the alienee's possession as the possession of a co-tenant and for this purpose it can make no distinction even if physical possession of such properties happens to be with the 1 defendant himself as the result of any arrangement between the 1st defendant and the alienees. But as regards the properties which have not been alienated by the 1 defendant, I am not able to agree in the view taken by the Courts below, because in paras. 5 and 6 of the plaint there is a distinct allegation that the 1 defendant has all along been giving either 15 kottahs or 11? kottahs of paddy as representing the share of the income due to the plaintiff's predecessor-in-title and to the plaintiff.

(3.) As regards the documents referred to in paras. 8 and 9 of the plaint, the Court must leave it to the plaintiff to decide whether or not she is prepared to take the risk of insisting on proceeding with the suit without a prayer to have them set aside. If she is light in her contention that they are totally inoperative and they may be ignored, there is no reason for calling on her to pay any court-fee in respect of an implied prayer relating to them. If on the other hand it turns out that without getting them set aside the plaintiff cannot succeed in this suit, she takes the risk of the suit failing, having so framed the plaint as not to ask for necessary declarations.