VIKRAMAJIT SEN, J. - (1.)For the purpose of these applications I shall only read the Plaint. In paragraph 17 thereof it has been pleaded that the Plaintiffs are legal heirs of the deceased Niranjan Dass Rikhy and Smt. Harbans Kaufare are also the Defendants. In the same sentences, it is stated that by virtue of their descendance they "are entitled to the possession and partition of the property by meets and bounds." Thus far the decision of the Hon'ble Supreme Court in Darshan Singh & Ore. Vs. Gujjar Singh (dead) by LRsand Ors. 2002 (1) Supreme 36 would apply in favour of the Plaintiffs since the possession of a property belonging to several co-sharers of one co-sharer may be deemed to be the possession of all co- sharers. Therefor, a triable issue would arise making it questionable as to whether this Suit can be rejected under Order VII Rule 11. Unfortunately for the Plaintiff, however, the averments in the Plaint do not stop here. In paragraph 22 it has been pleaded that "the cause of action is a continuing one and since the Defendants No.1 to 4 are in actual occupation of the same, it is the submission of the Plaintiff that they have no right to continue in possession exclusively to the exclusion of the Plaintiffs and every heirs and the only course open to the parties as to partition the property by meets and bounds and if not possible by sale of property." In addition to Darshan Singh's case (supra) counsel for the Plaintiff has also relied on Raman Chandra Dey and others Vs. Gour alias Gharbaran Gur and others AIR 1962 ASSAM 137 which proceeds on the basis/assumption that the co-sharers were in constructive possession of the property. There is a clear distinction between actual and constructive possession. A reading of the Plaint in the present case leaves no manner of doubt that the Plaintiff has actually been ousted from the possession of the property. Therefore, it brings into play the observations of the Hon'ble Supreme Court in Darshan Singh's case (supra) where the Court had pointedly drawn the exception to the rule of deemed possession of co-sharers viz. if it is found that there is a dear ouster from possession. In a suit for partition there can be disputes about the share in property as also a dispute pertaining to its possession. Where the property is in the possession of the third party normally actual possession of any of the co-sharers is not possible. It is in these circumstances that constructive possession becomes relevant. There may also be cases where the third party attorns to only one co- sharer from the very inception of the relationship, and pays all the dues to that one co-sharer alone. This, in my opinion, would also amount to ouster from possession' but would not have the same rigour as an ouster by another alleged co-sharer. Since I am presently not concerned with the valuation of the suit for purposes of court fees viz-a-viz suit valuation, I need riot advert to the decision in S.Rm. Ar. S. Sp. Sathappa Chettiar, Vs. S. Rrn. Ar. Rm. Ranianathan Chettiar AIR 1958 Supreme Counties. If authority is required forthe proposition that where a co-sharer has been busted from the possession of alleged joint property ad valorem court fees must be paid, it can be found inter alia in the decision in Smt Prakash Wati Vs. Smt. Day a want! and anothers AIR 1991 DELHI 48.
(2.)In view of the pleadings, I am satisfied that the Plaintiffs are neither in actual nor constructive possession of the property in suit. It cannot also be overlooked that the patriarch of the family who is the recorded titular owner thereof died in 1974 but the present suit has been filed as late as in 2001, i:e. a quarter of century later. It also appears that probate proceedings are pending since 1982 in which Defendant No.1 has set up exclusive claims thereto, based on the alleged Will of his Grandfather late Niranjan Dass Rikhy. Even this event has not galvanized the Plaintiff to file a suit forthwith. I am not presently concerned with the question of limitation but the conduct of the parties would be relevant in so far as ouster of possession and/or failure to be in joint possession of the suit property is concerned.
(3.)In these circumstances, the Plaintiffs' undertaking in the Plaint to pay court fee as and when directed, is accepted by the Court. The Plaintiff shall pay ad volerm court fees on the share of the suit property as per law within two months from today. I.A. -133/2002 is disposed of in these terms.