Try out the Virtual Legal Assistant to take your notes as you use the website, build your case briefs and professionally manage your legal research. Originally the suit was filed by the appellant's mother. After hearing the appellant, learned First Additional Civil Judge framed several issues on .
Learned counsel for the respondents on the other hand supported the judgments of the trial court and the High Court. So long as his right to a share and the nature of the property is not disputed, the law presumes that he is in joint possession. 37(1) there should be a clear and specific averment in the plaint that Plaintiff has been excluded from joint possession. In other words, it is property in which the plaintiff has an undivided share.
Identical issues came for consideration before the same High Court in T. An averment that remain in joint possession would not amount to exclusion from possession." Similar provisions were examined by this Court in M/s. What the plaintiff purports to do by making a claim for partition is to ask the court to give him certain specified properties separately and absolutely on his own account for his share in lieu of his undivided share in the whole property.
Become a Premium Member for free for three months and pay only if you like it. Plaintiff had filed suit under Section 7(2)(d) of the Act and paid court fee of Rs.200/- under Section 35(2) of the Act. Plaint scheduled property being agricultural property as such court fee is valued under Section 7(2)(d) of the Act and she cannot be compelled to value the said under Section 35(1) of the Act being a co-owner in respect of the plaint scheduled property along with the defendants. regarding payment of court fee as preliminary issue.
Challenge before the High Court was to the order passed by learned First Additional Civil Judge, Junior Division, Mangalore, holding that Section 35(1) of the Karnataka Court Fee and Suit Valuation Act, 1958 (in short the 'Act') was applicable and not Section 35(2) of the said Act in a suit for partition relating to agricultural land.
Order VII, Rule 11(b) will not be applicable." Reference was also made to the decision in Neelavathi and Ors. "37 (1) In a suit for partition and separate possession of joint family property or property owned, jointly or in common by a plaintiff who is in joint possession of such property, fee shall be paid at the rates prescribed." It will be seen that the Court Fee is nay- able under Section 37 (1) if the plaintiff is "excluded" from possession of the property.