S. Swamikkannu, J.
1. The plaintiff in O.S. No. 83 of 1982 on the file of the Court of the learned Subordinate Judge, Ariyalur, is the revision-petitioner herein. Check-slip No. 850/XXII/S was filed in O.S. No. 83 of 1982 before the Court of the learned Subordinate Judge, Ariyalur.
2. A reference by the Court-fee Examiner in O.S. No. 83 of 1982 was submitted to the court of the learned Subordinate Judge, Ariyalur, regarding the court-fee paid and the classification of the relief for partition as one under Section 37(2) is wrong. It is stated in the reference that the suit was filed to obtain possession, damages and future mesne profits, and the suit is sought to be classified as one for partition, damages and future mesne profits. Item No. 1 in the suit properties was purchased by the plaintiff from the first defendant on 28.5.1974. The mother of the defendant instituted a suit for partition and the share of the defendant was declared as 5/8. The plaintiff was a party to the proceedings as second defendant. The present suit has been filed stating that the plaintiff is entitled to 11/16 share as the plaintiff in O.S. No. 1239 of 1974 died and she was entitled to 1/8th share of which the first defendant in this suit is entitled to 1/16th share, and she was entitled to 10/16th share already and by virtue of this she was entitled to 11/16th share in the suit item No. 1. She prayed for partition of the suit properties by metes and bounds and to put the plaintiff in possession of her 11/16th share and to grant a decree for Rs. 2,093.75 as damages in equity to allot the entire item to her share and for future profits. It is stated by the court-fee examiner that if it is the intention of the plaintiff to re-open the partition already declared then she will have to reopen the partition and necessarily classify her claim under Section 37(4) of the Court-fees Act to set aside the prior decree with the necessary court-fee and she has to pay court-fee for getting a fresh allotment for the share. It is admitted that her predecessor in title has already parted with her allotted properties and possession is with defendants 4 and 5; and for the fresh allotment the claim has to be classified only under Section 37(1). The value for the relief of partition under Section 37(1) will be on the share fraction with statutory valuation permitted for revenue assisted lands coming under description 7(2) A to F of the Act 14 of 1955. On that the court-fee examiner has stated that the court-fee payable is Rs. 2,651/- and taking the court-fee already paid, the deficit court-fee of Rs. 2,511/- should be collected.
3. In the objection filed by the plaintiff, it was contended that for the purpose of computation of court fees, the allegation in the plaint must be looked into, and the intention of the plaintiff is not to reopen the partition and that possession of the defendants 4 and 5 also are only as purchasers from co-owners, and as such the court-fee payable is only under Section 37(2) of the Act. The plaintiff is in joint possession, and therefore, the court-fee paid is correct.
4. On the point whether the court-fee paid is correct, the learned Subordinate Judge, Ariyalur, held that court-fee of Rs. 2,651/- has to be paid as mentioned in the check slip and the deficit court-fee of Rs. 2,551 has to be paid by the plaintiff. The reference was accepted by the learned Subordinate Judge. Aggrieved by the above decision of the learned Subordinate Judge, the plaintiff has come forward with this revision.
5. Mr. R. Srinivasan, learned Counsel for the revision petitioner, contends that the learned Subordinate Judge ought to have held that even if the possession is with defendants 4 and 5, they are only purchasers from co-owners and as such they are in the position of co-owners and the court-fee payable is only under Section 37(2). In this regard, the learned Counsel for the revision petitioner also submits that the learned Subordinate Judge erred in observing that if the plaintiff is out of possession, her claim must come under Section 37(1) and not under Section 37(2) and under Section 37(4) she must set aside the prior decree.
6. The point for consideration in this civil revision petition is whether there is any infirmity in the order under revision so as to revise the same under Section 115 of the Code of Civil Procedure.
7. The plaintiff is a purchaser of Item No. 1 of the suit property from the first defendant, and from the plaint itself it is seen that there was a partition suit in O.S. No. 1239 of 1974 and her vendor was allotted 1/8th share and her claim for equity by allotting the first items to her was negatived. The present suit is filed for enlarging the order there on account of the subsequent event which has occurred enlarging the share that is available to her vendor. She has based the claim on joint possession. From the perusal of the plaint itself it is clear that the plaintiff is not in possession and some other properties have been sold in defendants 4 and 5 by her own vendor the first defendant, and they are in possession. The contention that she must be deemed to be in constructive possession is not tenable. No doubt in computation of the fee, the recitals in the plaint have to be taken into account. But there are exceptions to that rule. Then the plaintiff by a clever device tries to say that she is in possession, it is the duty of the court to see whether, in the circumstances mentioned in the plaint, she could have been in possession. The plaint allegation cannot be taken into consideration on the face value itself, when the circumstances would lead to the conclusion that what is stated cannot be true. In the instant case, the plaintiff has purchased an item of property from an undivided member and she has not stated that she is in possession. So far as joint possession is concerned also, it is not that as the property is with the other alienees of her vendor, she cannot be deemed to be a co-owner with other subsequent alienees. So the learned Subordinate Judge had accepted the court-fee examiner's contention that to obtain possession, damages and future mesne profits, the suit has to be classified as one for partition. A perusal of the plaint shows that the same had been instituted to enlarge the share. It means that the preliminary decree passed in O.S. No. 1239 of 1974 has to be set aside and without setting aside that decree there cannot be real allotment of share. It will disturb the share of all persons interested in the property also. As she is not in possession, her claim must come under Section 37(1) and not under Section 37(2) and under Section 37(4) she has to set aside the prior decree.
8. In Narayanaswami Ayyar v. Kesava Ayyar : AIR1952Mad539 it was held as follows:
Where an alienee from a co-owner who got divided in status in effect alleges in his suit that his vendor has been in joint possession of some of the items of the suit properties as a tenant-in-common with the other co-sharers and seeks to convert such constructive joint possession as tenant-in-common to separate possession, the suit cannot be valued except under Article 17 of the second schedule to the Court-fees Act. Such a Case cannot be brought within the scope of Section 7, Clause (v) of the Court-fees Act.
The decision in Narayanaswami Ayyar v. Kesava Ayyar : (1981)1MLJ11 is not applicable to the instant case before us.
9. In the instant case, a perusal of the plaint shows that the relief prayed for it for possession of the property from a third party. So the court-fee of Rs. 2,651/- has to be paid as mentioned in the check slip, and the deficit court-fee of Rs. 2,551 has to be paid by the plaintiff. The learned Subordinate Judge had correctly accepted the reference, and as such there is no infirmity in the order under revision.
10. The Civil Revision Petition is dismissed. Under the circumstances, there will be no order as to costs. The plaintiff/revision-petitioner is granted six weeks time from today for payment of the deficit court-fee of Rs. 2,551/-.