1. In this second appeal the following substantial questions of law were framed by this Court (Coram: P. D. Desai, J-):
'(1) Whether the appellant undervalued the subject matter of the suit for the purposes of court-fees and the suit is liable to be dismissed on the ground that it is not filed on payment of proper court-fees.
(2) Whether the suit is bad for non joinder of necessary parties.
(3) Whether the lower Appellate Court erred in taw in rejecting the appellant's application for amendment of the plaint with a view to impleading parties who were found to be necessary parties.
(4) Whether the suit is, barred by law 'of limitation, and,
(5) Whether the Appeal before the lower Appellate Court was barred by law of limitation.'
2. The first question pertains to the valuation of the suit for the purpose of court-fees. Originally the plaintiff who has 1/10th share in the suit property had filed this suit in form a pauperis; but subsequently he agreed to pay the court-fees and the court granted him time to pay up the proper court-fees. The plaintiff paid a court-fee of Rs.53/- only and contended that his interest in the suit properties is only 1/10th and, therefore he is liable to pay 1/10th of the court-fees calculated on the basis of the value of the suit property. The Trial Court found that the court-fee paid was not proper. The lower appellate court confirmed the finding of the trial court and held that the suit was not filed on the proper court fees. The same question is now agitated by the present appellant original plaintiff in this court also.
3. Mr. A. N. Bhagwat, the learned Counsel for the appellant has argued before this court that both the courts below have erroneously held that the court-fee paid was not proper, For his contention that he is liable to pay the court-fees on the value of his share only, Mr. Bhagwat has relied on the Division Bench judgment of this Court in Gandhi Bhupatlal Jagjivan v. Shah Shukhlal VarshidasNanalal, (1968) b Guj LR 194. Mr. Bhagwat has urged that in the aforesaid judgment this court has held that a party is liable to pay court-fees to the extent of his title only which according to him means that in this case the appellant plaintiff is liable to pay court-fees on his 1/10th share only. This is obviously misreading and misunderstanding of the aforesaid Division Bench judgment of this Court. This Court has very clearly held that the court-fee is payable on the title of the subject matter and the word 'title' has been interpreted to mean the extent of right of the party in the subject matter of the suit. That title may be total or partial. It would be total in the case of owner of the property but it would be partial in the case of other titles such as that of a tenant, or mortgagee-in-possession or a Mutawalli (Manager). It is no correct to say that a co-owner's title is not that of an owner's title or that it is the title of a partial owner. It is quite obvious That in this case the appellant plaintiff, who is the part owner of 1/10th share in this suit property sues on behalf of himself and his other co-owners and seeks possession of the entire property, must pay court-fees on the valuation of the entire property and not on that of his 1/10th share in it. Mr. Bhagwat has urged that if the suit was covered by Section 6(5) of the Bombay Court-fees Act he would be liable to pay court-fees on the value of the entire property, but according 'to him, this is a case governed by Section 6(4)(d) proviso (3) and hence he is liable to pay court-fees only on his 1110th share in the property. Mr. Bhagwat's contention is obviously wrong and untenable. The appellant-plaintiff having filed suit for possession on behalf of him-1 self and his co-owners in respect of the entire suit property, he is liable to pay ad valor court-fees on the value of the entire property and not on his 1/10thl share. It is, therefore. held that the two courts below were right in holding that the suit is not filed on the proper -court fees and hence the same is liable to be dismissed, on that ground. However, in the interest of justice this matter is being remanded back to the trial court to enable the plaintiff to pay the deficit court fees and proceed with the suit.
4. The second substantial question of law in this appeal is with regard to nonjoinder of necessary parties. The present appellant-plaintiff has filed a suit on behalf of himself and his co-owners for obtaining possession on the basis of title. Mr. Bhagwat has relied on the decision in the case of Shivangouda Lingangouda v. Gangawwa. Basappa reported in AIR 1967 Mys 143 for the proposition that one co-owner can file a suit for the eviction against the trespassers without joining her co-owners. This proposition of Mr. Bhagwat is correct and must be accepted. It is not necessary for all the co-owners to join in a suit to evict a trespasser. Anyone of the co-owners can file such a suit. Hence on this question this appeal is allowed.
5. The third substantial question of law is regarding the rejection of the present appellant's application for amendment of t1fe plaint given before the appellate court so as to bring the other co-owners on the record as party to remove the formal defect. As it is held in this appeal that the other co-owners were not necessary parties and at the best they could be regarded as proper parties, the question of rejection of the appellant's application for-amendment of the plaint really does not survive. However, it is clarified that it is open to the present appellant-plaintiff to amend the plaint and implead the other co-owners in this suit, even though they are merely proper parties.
6. The fourth substantial question of law is whether the suit is barred by limitation. Both the courts below have held that the suit is barred by limitation. The lower appellate court has held that although the suit for possession based on title could be governed by Art. 65 of the Limitation Act, but as there are other Ancillary relief's also claimed, the limitation period would be governed not by Art. 65. Here the lower appellate court has obviously gone wrong. The limitation period in this case would undoubtedly be governed by Art. 65 of the Limitation Act because the relief regarding possession of the suit property is the main relief and it would not be affected by lesser period of limitation applicable to ancillary relief's claimed together with the main relief. When there are several relief's claimed in a suit, the' limitation period would be that of the main relief the limitation for ancillary relief being ignored.
7. The fifth and the last substantial question of law in this appeal is that the appeal before the lower appellate court was barred by law of limitation. The lower appellate Court is in error on this point also because, it has treated the appeal to have been filed on the day on which the application for permission to file appeal as an indigent person was rejected. The appeal was, in fact, filed within time, but the same was accompanied by an application for permission to file the appeal as an indigent person. That application was disposed of after about two years. The appellant was entitled to get that period taken into consideration for the purpose of bringing appeal within time, as it was time taken in prosecuting a relief in a court of law under a bona fide belief that his Application for permission to file appeal as an indigent person would be granted. The application having been rejected the appellant paid up the court fees of Rs.53/- as per the order of the court. Hence the granting of permission by the court to pay up the court fees -on the rejection of the pauper application can be treated as the condonation of delay by the Court. If the court did not want to condone th6 delay it would not have directed the appellant to pay up the court fees within the specified time. Hence the Appeal is allowed on this point also.
8. In the result, the matter is remanded to the trial court for disposing of the suit according to law on the payment of proper court fees and after amending the plaint suitably so as to implead other co-owners.
9. The Appellant will be entitled to certificate for refund under S. 15 of the Bombay Court-fees Act.
10. In the result, the appeal is partially allowed. The judgment and decree of the lower appellate court is set-aside to that extent. The respondent was served but has chosen to remain absent. Hence there shall be no order as to costs.
11. Appeal partially allowed.