Das Gupta, J.
1. The petitioner instituted a suit for partition on the allegation that along with the opposite parties he was in joint possession of three plots of lands C. S. Plots Nos. 9313, 9311 and 9315 of Monza Bali. In view of the allegation and the nature of relief claimed he paid fixed court-fees of Rs. 15. After both parties had examined their witnesses and produced documents and closed their evidence the learned Subordinate Judge heard the arguments of the parties and then passed an order directing the appointment of a commissioner to ascertain the proper valuation of the suit property being of opinion that ad valorem court-fees on the value of the property was payable on the plaint. It is against this order that the plaintiff has filed the application and a rule was issued on the opposite parties to show cause why this order should not be set aside The ground for the learned Subordinate Judge's decision that ad valorem court-fee was payable was a statement made by the plaintiff in his evidence that he was not in possession of the suit property.
2. Mr. Banerjee for the petitioner has contended and there can be no doubt rightly, that the question as to what court fees are payable on a plaint has to be decided on the allegation in the plaint and the nature of the relief claimed. Whatever may transpire in the evidence, the plaint remains the same until and unless it is amended and a conclusion on a consideration of the evidence that the plaintiff is or is not in possession cannot affect the nature of the suit as instituted in the plaint. In this case the plaint as already stated was for partition on the allegation of joint possession with other co-sharers and so long as that plaint is not amended it must be held that the court fees paid are sufficient, no matter what may transpire in the evidence.
3. If and when a Court comes to the conclusion that the allegation of joint possession in the plaint is not borne out by the evidence the obvious result would be that the plaintiff's suit would fail unless the petition is suitably amended and further court fees paid. In the present case as the evidence on both parties has been closed we are in a position to see for ourselves whether the plaintiff's case of joint possession as made out in the plaint has been proved to be incorrect. Admittedly the plaintiff was recorded in the settlement operation as in possession of ore of the plots. The defendant, who was examined himself, claimed to be in possession of this plot exclusively and that the plaintiff has never been in possession. This statement of the defendant alone cannot be held to be sufficient to rebut the correctness of the settlement record.
4. Mr. Achary, on behalf of the opposite-parties, laid much stress on the plaintiff's statement in the evidence that he never possessed the suit property. This sentence has, however, to be read with the following sentence that the suit property is lying patit. I have no doubt in my mind that what the plaintiff wants to convey by his statement 'I never possessed the suit property' was that he did not exercise any acts of actual possession such as cultivation on the like, because the land was lying patit. The position in view of the record of the plaintiff's possession in the settlement khatian, which stands unrebutted, obviously is that the possession of the other co-sharers of the suit property must be taken to be also plaintiff's possession.
5. It may be mentioned in this connection that the defendant has nowhere said anything about ousting the plaintiff from possession. So long as there is no such ouster, plaintiff's possession remains, even though he may not be exercising any actual acts of possession.
6. Even if, therefore, it was permissible for the learned Court below to go into the evidence, in order to decide whether court fee on the plaint was sufficient, I am of opinion that the evidence on the record does not justify the conclusion at which he arrives that the plaintiff's allegation of joint possession has been proved to be untrue or that the plaintiff is out of possession.
7. My conclusion, therefore, is that the learned Subordinate Judge is wrong in his opinion that ad valorem court-fee is payable on the plaint and that the fixed court, fee of Rs. 15 paid by the plaintiff is sufficient. I would accordingly make this rule absolute and set aside the order passed by the learned Subordinate Judge. There will be no order for costs.
G.N. Das J.