S. Nainar Sundaram, J.
1. The plaintiff in O.S. No. 18 of 1977 on the file of the District Munsif, Shencottah is the petitioner in the revision. The respondents herein are the defendants in the said suit. The plaintiff laid the suit for partition and separate possession of his one fourth share in the suit properties. The necessary averments that the plaintiff is in joint possession of the suit properties have been made in the plaint and the plaintiff valued the suit for the purposes of Court-fees and jurisdiction under Section 37(2) of the Tamil Nadu Court-fees and Suits Valuation Act XIV of 1955, hereinafter referred to as the Act. Defendants 2 and 3 remained ex parte. The 1st defendant filed a written statement denying the right in and the joint possession of the suit properties, claimed by the plaintiff. The 4th defendant, who is an alienee of one of the items of suit properties from the first defendant, also raised a similar contest. On the pleadings various issues were framed and issue No. 6 reads as follows : Whether the Court fee paid is correct? Obviously, defendants 1 and 4 seemed to have pressed for a decision on this issue, as a preliminary issue. The Court below by orders dated 1st day of November, 1977 rendered its decision on this issue and it held that the suit ought to have been valued under Section 37(1) of the Act; and directed the plaintiff to pay Court-fees under Section 37(1) of the Act. The present revision is directed against the orders of the Court below.
2. In my opinion, the Court below has committed an error in deciding the matter as it did without adhering to the well recognised principles as to valuation and payment of Court fees in suits of the present nature. Admittedly no evidence, oral or documentary, has been placed before the Court below for consideration on this questions; and the trial has not proceeded on the other issues. It is well-accepted that in these matters, plaint allegations are the determining factors. It has not been stated anywhere in the plaint that the plaintiff has been excluded from joint possession. There seems to be no exchange of notices, indicating the existence of a dispute anterior to the suit, to the plaintiff's claim for joint possession. It is true that the defendants 1 and 4 have filed written statements, denying the plaintiff's claim for joint possession. But the plaintiff has filed reply statements, and he has not given up his case of joint possession. Then it becomes incumbent for the Court at the full fledged trial of the suit to consider the question as to whether there has been an actual ouster as pleaded by the defendants. If after the full-fledged trial, the Court comes to the conclusion that the plaintiff's case of joint possession in the plaint is not borne out by the evidence, the course to be adopted is to dismiss the suit of the plaintiff, unless he amends the plaint suitably and pays the requisite Court-fees under Section 37(i) of the Act. In such matters, it is not safe and advisable to decide the issue on a consideration of the pleadings alone without proper and sufficient materials disclosed and placed before Court. In the present case no evidence has been adduced by the parties on this issue. It cannot be stated that this issue is not interlinked with other issues.
3. Panchapakesa Ayyar, J. in Varadarajulu Reddiar v. Venkata Krishna Reddiar and Ors. : (1958)1MLJ199 observes as follows:
Then, the learned Additional Government Pleader urged that whenever a reply notice to the person seeking partition, denies his right to partition and denies joint possession of the properties, that will be enough to bring into operation Section 7(xiv)(b). The argument is un-sustainable. In the majority of partition suits, a reply notice will deny the right to partition and also deny joint possession. For that reason to compel the plaintiff seeking partition to pay court-fee under Section 7(iv)(b), and to deprive him of the right given to him under the law of file a suit for partition, paying court-fee only on that basis will be unjustifiable and even illegal.
When such is the position even where there has been an exchange of notices, it will be unreasonable to conclude on the pleadings alone, that the plaintiff is excluded from joint possession, which he claims.
4. The reasoning of the Court below can be gathered from the following observations in its fair order:
Therefore in respect of item 2 of the plaint schedule properties, ever since 8th June, 1955 the 4th defendant has been in possession and enjoyment of the same as nowhere it is denied that 4th defendant is not in possession of the same. Therefore the allegation of the plaintiff that he has been in possession and enjoyment of same along with the defendants 1 to 3 over the 2nd schedule properties also cannot be true. The 1st defendant claims right over the plaint schedule properties through the will executed by Shanmugavel Thevar. Therefore in view of the contentions raised by the parties, the plaintiff could not at all have been in possession and enjoyment of the suit properties with the first defendant as he claims right through under the will. Therefore, the Court-fee paid under Section 37(2) is not proper.
This reasoning ignores the principles set out above. Ramaswami, J. was facing a similar question on similar facts in the case of in Mohamed Yassin, In re : (1958)1MLJ21 and the learned Judge observed that:
Under the pretext of proper computations of Court-fees there cannot be a trial of a suit within a suit and this stage of the proceedings cannot be made the rehearsal of the suit....
Of course the learned Judge was dealing with a decision under Section 12 of the Act at the instance of the defendant. But the principle can be applied even to a case, where this issue is sought to be decided, without evidence and materials to substantiate the same. I find the Court below has not properly appreciated and applied the above principles to the facts of the present case. In this view, I am inclined to interfere in revision and this revision is allowed. The order of the Court below on this issue No. 6 is set aside and the matter is left open to be decided at the full trial of the suit. But there will be no orders as to costs in this revision.