SURYAMANI SAHU Vs. DARSANI SAHU

JUDGEMENT

(1.) THIS petition is by the plaintiffs against an order of the learned Subordinate judge of Balasore, calling upon them to pay additional court-fee.

(2.) THE facts are these. Plaintiffs filed a suit for partition each claiming one-fifth share in the joint family properties. According to them, their father, defendant No. 1, had alienated certain properties in the name of some of the defendants. They further stated that the several deeds of alienations were not acted upon and accordingly they paid a court-fee of Rs. 150/- as required in a pure suit for partition. The value of the properties involved is Rs. 1,69,285. 64 np. The peripatetic stamp reporter after a closer examination of the plaint reported that the plaintiffs were liable to pay court-fee under Section 7 (iv) (c) of the Court-fees act in respect of the properties covered under various alienations, because according to him the properties covered by the transfers' cannot be partitioned unless the transfers are set aside. The learned Subordinate Judge came to the conclusion that the plaintiff must separately value the properties covered by various transfer-deeds as also the property allotted to defendant 2 in the previous partition-deed and must pay ad valorem court-fee on the value of their shares therein. It is against this order that the present Civil Revision is directed.

(3.) MR. R. N. Misra, learned counsel on behalf of the plaintiffs-petitioners, contended that the question whether or not additional court-fee is payable by the plaintiffs must be decided on the allegations as made in the plaint. It was open to the trial judge to negative the relief if ultimately he found the allegations made in the plaint were incorrect. According to the plaintiffs, the parties are in possession and the alienations have not been given effect to. Hence the trial Judge had no jurisdiction to call upon the plaintiffs to pay additional court-fee.