Karamat Husain and Chamier, JJ.
1. This was a suit by the appellant for partition of a house and its appurtenances in Dehra Dun. The appellant paid a court fee stamp of Rs. 10 on his plaint under the Court Fees Act, schedule II, Article 17(vi). The respondents pleaded that the court fee paid was insufficient. They contended that it should be calculated on the value of the property. The court below acceded to this contention and appointed a commissioner to inquire into the value of the property. The commissioner reported that the value of the whole property was Rs. 22,000 and that the value of the plaintiff's share therein was Rs. 16,500. The court then held that the plaint should have borne a court fee stamp of Rs. 57 and called on the appellant to make good the deficiency. The appellant having declined to do so, the court dismissed the suit. Several decisions were cited in the court below. We think that it is unnecessary to set them out here.
2. In the case of Reoti v. Lachhman Weekly Notes 1900 p. 90 this Court, following decisions of the Calcutta High Court, held that a plaint in which the plaintiff being jointly in possession with the defendant of property prayed that the plaintiff's share might be partitioned was sufficiently stamped with a court fee stamp of Rs. 10. To the same effect is the decision of this Court in Waliullah v. Durga Prasad (1906) I.L.R. 28 All 340. These decisions are supported by a recent decision of the Calcutta High Court in Bidhata Rai v. Ram Chariter Rai (1907) 12 C.W.N. 37. In all these cases it has been held that where the plaintiff, as in the present case, alleges that he is in possession and merely claims partition of the property and separate possession of his share, a court fee stamp of Rs. 10 is sufficient. But where the plaintiff is out of possession and claims possession and partition, then he must pay a court fee calculated on the value of the share claimed by him. The decision of the court below is, in our opinion, erroneous. We allow the appeal and remand the case with directions that it be re-admitted on the file of pending cases and disposed of according to law.