1993 PLP 724 (MLD)

Saadullah Khan and 6 others v. Mir Playo and 14 others PLD 1970 Pesh. 150 and Rachappa Subrao Jadhaw Desai v. Shidappa Venkatrao Jadhaw Desai AIR 1918 PC 188 ref. Qazi Zia Zahid for Petitioner. While conceding that the parties are co-sharers, learned counsel has attempted to distinguish this case on the basis of averments of para. No.2 of the plaint, to the effect that the defendants have unauthorisedly included the land in suit in their flour-mill. His contention is that therein 'stands made admission about ouster of the plaintiffs who have, therefore, to pay a court-fee on the market value of the suit property which runs into several lacs of rupees. I cannot read such an admission in the statement about unauthorised possession contained in the said paragraph of the plaint which is nothing more than a mere statement about actual possession of the property, in fact held by the defendants. There is no claim made in the plaint to the effect that the plaintiffs had, at any stage, held the actual possession wherefrom they could be dislodged, therefore, ouster of the plaintiffs is not liable to be inferred from the said pleading, more particularly so because the defendants have not at ail pleaded ouster in their written-statement, therefore, despite the said statement in the plaint, this suit continues to be a simple suit for separate possession through partition maintained by some of the co-sharers against the others and since by virtue of law laid down in Saadullah Khan and 6 others v. Mir Playo and 14 others (PLD 1970 Pesh. 150), every co-sharer is entitled to claim himself to be holding the possession of common property through the other co- A sharer in actual possession thereof, therefore, court-fee of the value of Rs.10 paid by the plaintiffs on their plaint has been rightly held by learned trial Judge to be sufficient.

2. Not only that there is no error of law or jurisdiction involved in the order 'passed by the trial Court to uphold the court-fee already paid as being correct but also there can be no personal interest of the defendants involved in insisting that further court-fee is in the need of having to be exacted from the plaintiffs. As has been held in Rachappa Subrao Jadhaw Desai v. Shidappa Venkatrao Jadhaw Desai (AIR 1918 PC 188), petitioners cannot be permitted to use this objection as a weapon of technicality against the respondent plaintiffs. The defendant-petitioners do not have any locus standi to maintain this revision petition on the mere question of court-fee.

3. Since in net result, a correct order stands passed by the trial Court as regards the proper court-fee, therefore, there is no occasion made out for discretionary power of revision being exercised in this case on account merely of the trial Court's omission to hold any inquiry about the market value of the property within the contemplation of section 10 of the Court Fees Act. More so because nothing could possibly turn thereupon in the admitted facts of this case.

4. Revision petition is without substance. As such, it is dismissed - in limine. H.B.T./T-37/L Revision dismissed.