ORDER
M.S.A. Siddiqui, J.
1. By this application under Order 7 Rule 11 C.P.C., the defendant Nos. 1 and 2 seek rejection of the plaint on the ground that the plaintiffs have under valued their claim for partition of the suit properties and for rendition of accounts.
2. The plaintiffs have filed the present suit for partition of the suit properties and for rendition of accounts on the ground that the suit properties were owned and possessed by Late Ram Saran Dass Tuli. Ram Saran Dass Tuli died intestate leaving behind his widow (defendant No. 2), two sons namely Har Saran Das Tuli, Shiv Saran Das Tuli and one daughter, namely Smt. Kamlesh Verma. Har Saran Das Tuli expired on 6-8-1995 leaving behind the plaintiffs as his legal heirs. The plaintiffs claimed that on the death of Ram Saran Das Tuli, the suit properties mentioned in Schedule I and II annexed with the plaint devolved upon his class I heirs, the plaintiffs and the defendants being entitled to equal shares. According to the plaintiffs the defendant No. 1 and 2 have been receiving rents of the immovable properties left by late Ram Saran Das Tuli but they failed to give the plaintiffs their shares of income from the suit properties. The plaintiffs repeatedly demanded partition and the defendant Nos. 1 and 2 were evading. The plaintiffs claimed that each of the plaintiffs as coowners is in legal possession of the suit properties. For the purposes of court fee and jurisdiction, the plaintiffs valued the suit for Rs. 4 crores and paid fixed court fee of Rs.20/- on the relief for partition. They also valued their relief for rendition of account at Rs.200/- and paid a fixed court fee of Rs. 20/-.
3. The defendant Nos. 1 and 2 pleaded in their written statement as well as in their application under Order 7 Rule 11 CPC that since the plaintiffs are out of possession of the suit properties, they ought to have paid ad valorem court fee on the market value of their shares in the suit properties as required by Section 7(iv)(b) of the Court Fee Act.
4. Learned counsel for the defendant contended that the plaintiffs’ suit is governed by Section 7(iv)(b) of the Court Fee Act and unless the court
fee at the market rate is paid the plaint is liable to be rejected under Order 7 Rule 11(b) CPC. Reliance has been placed on a decision of this Court in Prakash Wati Vs. Dayawanti in support of the said contention. On the contrary, learned counsel for the plaintiffs, relying upon the decision of the Supreme Court in Neelavathi Vs. N.Natrajan , contended that they are entitled to a share in the properties left by late Ram Saran Das Tuli and as such they shall be deemed to be in joint possession of the suit properties along with the defendant Nos. 1 and 2.
5. It is stated in the written statement filed by the defendant Nos. 1 & 2 that the plaintiffs alongwith the defendant No. 3 have been disinherited by the registered Will dated 24-10-1991 executed by late Ram Saran Das Tuli. It is also stated that during his life time, Late Ram Saran Dass Tuli had separated his son Har Saran Tuli by gifting away the house bearing No. 29/3955 and thus, the plaintiffs are not entitled to any share in the suit properties.
6. In the case of NeelaVathi (Supra), it was held that the question of court fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced by the pleas in the written statement. It is relevant to mention that although the defendants No. 1 and 2 have filed their written statement but issues have not yet been framed in this suit. In Samar Singh Vs. Kadal Nath , it was held that order 7 Rule 11 CPC does not either expressly or by necessary implication provide that power under the said provision should be exercised at a particular stage only and the power under the said provision can be exercised even after settlement of issues.
7. It is worth mentioning that there is no specific averment in the plaint that the plaintiffs have been excluded from the joint possession of the suit properties. The plea in paragraphs 18 and 19, relied on by the learned counsel for the defendants, states that the defendants failed to give the plaintiffs their share of the income. The plea that the plaintiffs were not given their due share of the income of the suit properties would not amount to dispossession. It is stated in para 22 of the plaint that the plaintiffs are in legal possession of the suit properties. Learned counsel for the defendants contended that the tenor of the plaint shows that the plaintiffs never enjoyed the suit properties at any time and as such no presumption can be drawn with regard to their joint possession of the suit premises. I am unable to accept the said submission of the learned counsel for the defendants. In this connection, I may usefully excerpt the following observation of their Lordships of the Supreme Court in Neelavathi Vs. N.Natrajan (Supra)
“….The general principle of law is that in the case of coowners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. qually it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been “excluded” from joint possession to which they are entitled to in law. The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiff had been excluded from possession…..”
8. It is stated in the written statement that the plaintiffs had been excluded from possession of the suit premises during the life time of Late Ram Saran Dass Tuli. As noticed earlier, the question of court fee must be considered in the light of the material allegations contained in the plaint and its decision cannot be influenced by the pleas in the written statement. The ratio decidendi of the decision in Prakash Wati (Supra) does not govern a case like in hand as in that case the plaintiffs themselves pleaded their exclusion or ouster from joint possession of the properties. On a consideration of the plaint as a whole and giving it its natural meaning, I am unable to agree with the contention of the learned counsel for the defendants No. 1 and 2 that plaint has been insufficiently stamped and so it is liable to be rejected under Order 7 Rule 11(4) CPC. However, if the defendants succeed in proving the plaintiffs’ exclusion or ouster from joint possession of the said properties, appropriate orders will be passed with regard to payment of proper court fee on the reliefs claimed by the plaintiffs.
9. For the foregoing reasons, the application filed by the defendants No. 1 and 2 is disallowed.
10. List the matter before the Joint Registrar for conducting admission and denial of documents on.
