S.K. Ray, Ag. C.J.
1. The petitioner is the plaintiff in a partition suit, T. S. No. 45 of 1971, filed in the court of the Subordinate Judge, Dhenkanal. She claimed 1/8th share in the suit properties as per the settlement record-of-rights of 1959 and for separate allotment of the same. The reliefs claimed in the plaint were as follows:--
'(i) That her share in the disputed property be defined to the extent of l/8th and a preliminary decree be passed accordingly adjusting sale made by defendant No. 2 and defendant No. 3 to the extent indicated and adding the same towards the share of defendant No. 1;
XX Xx XX(iii) That delivery of possession as per the allotment be made over through court.'
It is clear from the averments of the plaint that the plaintiff's quantum of share was in controversy and she wanted adjudication of the same. In para 7 of the plaint the plaintiff valued the suit at Rs. 1,250 which was the value of her 1/8th share for the purpose of jurisdiction and court-fee, the total market value of the suit properties being Rs. 10,000. She paid a fixed court-fee of Rs. 22.50 treating it as a simple suit for partition.
2. Defendants 4, 6 and 7 contested the suit by filing a joint written statement They denied the plaintiff's share and her right to claim partition, though she was admitted to be the daughter of late Basudev of the family in whose name the properties stood exclusively recorded in the record-of-rights of 1924. They contended, inter alia, that they are in possession of the entire suit lands in their own right, title and interest. The plaintiff having given up her interest in the suit properties voluntarily long ago, was not entitled to partition and for recovery of her share. The other defendants, viz., defendants 1, 2, 3 and 5 who have undisputed shares in the suit properties admitted the plaintiff's case for partition. The Subordinate Judge decreed the suit whereupon defendants 4, 6 and 7 filed Title Appeal No. 27 of 1973 in the court of the Additional District Judge. Dhenkanal. They also paid a fixed court-fee of Rs. 22.50 on their memorandum of appeal.
3. Three contentions were raised before the lower appellate court. First was that in view of the defence taken by the contesting defendants the plaintiff being out of possession and her title being denied, was liable to pay ad valorem court-fee on the plaint. The second contention urged by the plaintiff-respondent was that the appeal before the Additional District Judge was not maintainable as valuation for the purpose of jurisdiction would be the total value of the suit properties which was fixed at Rs. 10,000 and not the value of the plaintiff's share which was Rs. 1,250, and that the appeal should lie to the High Court. The third contention was that the learned Subordinate Judge accepted some documents for the plaintiff and exhibited them after the closure of the case and did not dispose of two petitions filed by contesting defendants 4, 6 and 7 wherein they prayed for acceptance of more documents from them marking them as exhibits in the case from their side, to frame three more issues, and to give further opportunities to the parties to lead evidence thereon. The Subordinate Judge, however, without passing any express order disposing of those petitions, framed three additional issues, viz., issues 8, 9 and 10 behind the back of the parties and no opportunity was given to the parties to adduce evidence thereon.
4. The learned Additional District Judge held that the plaintiff is to pay ad valorem court-fee, as one of the defendants denied her title for partition in the written statement; that valuation for the purpose of jurisdiction should be the value of the plaintiff's share which is Rs. 1,250 and, as such, the appeal is maintainable; and that defendants were highly prejudiced inasmuch as issues 8, 9 and 10 were framed behind their back end that no opportunity was given to the parties concerned to adduce evidence thereon and inasmuch as the documents tendered by them as evidence in the case were not accepted and that the suit was finally disposed of without passing any order on the two petitions of the defendants.
5. The first contention of Mr. Patra is that the question of court-fee should be determined on the averments of the plaint. Looking to the plaint allegation and the reliefs claimed, the court-fee payable is not under Section 7 (vi-a) (Orissa Amendment) but under Article 17-A of Schedule II of the Court-Fees Act. I think there is great force in Mr. Patra's contention. It is a well settled principle of law that the question of court-fee must be considered and determined in the light of allegations made in the plaint and that its decision cannot turn either on the pleas in the written statement or in the final decision of the suit on merits, (see the case of Sathappa Chettiar v. Ramanathan Chettiar, AIR 1958 SC 245). It is also held by the Supreme Court in the case of Shamsher Singh v. Rajinder Prasad. AIR 1973 SC 2384, that the court in deciding the question of court-fee should look into the allegations in the plaint and see what is the substantive relief that is asked for.
In the case of Balmukunda Singh Rai v. Chitrabhanu Singh Rai, AIR 1971 Ori 108, on which Mr. Patra relies, two propositions have been laid down, namely:
(a) The result of Orissa amendment of, the Court-Fees Act by introducing Section 7 (vi-a) is that 'in Orissa, a suit for partition and separate possession of a share of joint family property or of joint property or to enforce such rights when plaintiff alleges that he has been excluded from possession of the property falls to be governed by the amended clause. Such a suit has to be valued according to the market value of the share in respect of which the suit is instituted and ad valorem court-fee has to be paid on such valuation'. To attract this amended provision of Section 7 (vi-a), 'plaintiff must allege to have been excluded from possession of the property of which he claims to be a coparcener or co-owner'.
(b) In regard to suits for partition where plaintiff claims to be in actual or constructive possession of the properties, Article 17-A of Second Schedule of the Court-Fees Act is applicable, because in such suits 'it is not possible to estimate at a money value the subject-matter in dispute and which is not otherwise provided for by the Act. 'It is well settled that in partition suits where plaintiff alleges to be in joint possession, it is not possible to estimate the subject-matter at a money value, because in such oases, what is sought is, in substance, a change in the mode of enjoyment and not recovery of possession of the property which plaintiff claims to be already in possession with his co-sharers'.
As indicated above there is no allegation anywhere in the plaint that the plaintiff has been excluded from possession of the suit properties. Relief (iii) is usually asked in a partition suit, pure and simple and it is not and cannot be construed as a relief for recovery of possession on the, ground of dispossession. On the other hand, the plaintiff has alleged that in the eye of law she is in joint possession of the properties along with defendants as co-owner or co-sharer. The learned Additional District Judge was, therefore, in error in considering the question of court-fee not in the light of the allegations made in the plaint alone but being influenced by the pleas in the written statement of the contesting defendants and holding that the suit was governed by Section 7 (vi-a) (Orissa Amendment) of the Court-Fees Act and calling upon the plaintiff to pay ad valorem court-fee on the value of her share. That direction of the learned Additional District Judge is, therefore, quashed.
6. The next question is whether the appeal was maintainable in the court of the Additional District Judge. That depends upon the question as to the valuation for the purpose of jurisdiction. If Section 8 of the Suits Valuation Act is attracted, then value as determinable for the computation of court-fee and the value for the purpose of jurisdiction shall be the same. If Section 8 is not attracted, then value for the purpose of court-fee and value for the purpose of jurisdiction will be different. As already shown a fixed court-fee is payable on the plaint under Schedule II, Article 17-A of the Court-Fees Act. In a suit for sample partition, where the plaintiff does not allege dispossession but there is dispute as to the quantum of share, the value for the purpose of jurisdiction would be the value of the share claimed by the plaintiff and not the value of the whole property of which the partition is sought (see Dukhi Singh v. Harihar Shah, AIR 1921 Pat 78; Ranjit Sahi v. Maulavi Quasim, AIR 1923 Pat 342; and Chadhai Behera v. Parbati alias Pati Dei, (1962) 28 Cut LT 433), There is no dispute in the present case that the value of the plaintiffs share is Es. 1,250 and, as such, the appeal to the Additional District Judge was maintainable.
7. The third question is whether the order of remand on the ground that the trial court discriminated between the plaintiff and the contesting defendants in the matter of admitting evidence after close of the hearing and in framing issues behind the back of the parties and determining the same without giving opportunity to the concerned parties to adduce evidence on them, can be sustained under law. An appellate court has the power of remand under Sections 107 and 151 and under Order 41, Rules 23 and 26 of the Code of Civil Procedure. The general power of remand conferred under Section 107 is made subject to such conditions and limitations as may be prescribed, in absence of any conditions and limitations prescribed by the rules, the appellate court shall have power of remand. Rules 23 and 25, Order 41 provide for specific conditions under which the appellate court may issue an order of remand. In a class of cases, not covered by Rules 23 and 25 of Order 41 the power of remand can also be exercised by the appellate court, if not under Section 107, C.P.C. by reasons of conditions and limitations prescribed under Rules 23 and 26 of Order 41, certainly under Section 151 of the Code. Therefore, the order of remand passed by the learned Additional District Judge on the ground stated in para 5 of his judgment cannot be said to have been exercised without authority of law and for the reasons stated therein must be upheld as a proper order.
8. In result, therefore, the civil revision is partly allowed. The order directing the Subordinate Judge to recover ad valorem court-fee from the plaintiff on Rs. 1,250 is struck down; but his order remanding the suit for re-hearing in the light of the directions given by the Additional District Judge must be maintained as a proper order. The suit, therefore, shall go back to the Subordinate Judge as directed by the Additional District Judge who shall dispose of the suit before him in accordance with the direction given by the Additional District Judge, But there shall be no recovery of ad valorem court-fee from the plaintiff.
Since there was no appearance by the other side, there will be no order for costs.
Civil Revision is partly allowed. No costs.