2002 PLP 956 (YLR)

Date of hearing: 11th April, 2002. This order will dispose of the office objection regarding payment of proper Court‑fee alongwith application under section

149. The objection has been taken on the presentation of plaint by the plaintiff, who has filed the suit for partition with the facts that Mohammad Ajmal Khan son of Fazal Hussain, expired at Karachi on 29‑4‑1992 leaving behind the plaintiff and defendants as legal heirs i.e. sons and daughters. The plaintiff is out of possession and has prayed for the partition of the suit property bearing No.91, Al- Haider Housing Society Project, Cantonment Area Karachi being co‑sharer through inheritance with further prayer that each shareholders be put in possession of their respective portion of the property. On office objection, the notice to Advocate General Sindh was issued and Mr. Abbas Ali, learned Additional Advocate General has put his appearance. I have heard the learned counsel for the plaintiff and learned Additional Advocate General on Court notice. It has been contended by Mr. Ch. A. Rasheed that a suit for partition is governed by the Article 12(vii) of second Schedule to the court Fee Act as at this stage it is not possible to estimate the value of the subject‑matter in issue, which prescribes fixed court‑fee of Rs.15 which has been affixed on the plaint, whereas, learned Additional Advocate General's contention was that since the plaintiff is out of possession, through partition, the plaintiff seeks possession of their share, as such the suit would fall under section 7(v) of the Court Fees Act for the purpose of payment of court‑fee, which requires ad valorem Court fee‑ Mr. Ch. A. Rasheed has referred the following cases in support of his contention:‑‑ (i) Mst. Shah Jehan Begum v. Muhammad Siddique and 5 others (PLD 1971 Karachi 920); (ii) Saadullah Khan and 6 others v. Mir Puayo Khan and 14 others (PLD 1970 Peshawar 150); (iii) Ch. Mehmood Ahmad v. Mst. Sarwar Sultana and others (1994 CLC 1664) and (iv) Sher Bahadur Khan and 3 others v. Anwar Khan and 4 others (1996 CLC 1624). View taken in first case was that a suit for partition and separate possession brought by a co‑owner claiming to be in joint possession falls under Article 17(vi) of the Second Schedule to the Court Fees Act is settled law. The above view was taken on the basis of rule laid down in Diwanchand v. Dhani Ram's case (AIR 1941 Lahore 123). It may be stated that is Sindh Article 12(vii) of the Second Schedule has replaced the article 17(vi) containing same provision with enhancement of court‑fee, from Rs.10 to Rs.15 vide Sindh Finance Act (XV of 1975). In some of the above‑cases, it was also ruled that owner is deemed to be in constructive possession through the co- sharer. From the perusal of the plaint, the suit of the plaintiff is an essentially one for partition of the property jointly owned by the parties inherited through their father Such a suit can be filed with fixed court‑fee of Rs.15 under Article 12 (vii) of the Court Fees Act applicable to the Sindh which covered suit where it is not possible to estimate money value the subject‑matter in dispute and which is not otherwise provides for, under the Court Fees Act. Consequently, office objection is over ruled. The plaintiff can be called upon to pay the court‑fee, once the value of his share is determined on trial or the defendant takes plea denying the title as well as possession of the plaintiff. H.B.T./M‑362/K Order accordingly.