JUDGMENT
Mungeshwar Sahoo, J.
This First Appeal has been filed by the Plaintiff No. 1 against part of the Judgment and conditional decree dated 26.02.1994 passed by Sri Surya Narain Mahto, the learned Subordinate Judge-I, Vaishali at Hajipur in Partition Suit No. 101 of 1991 whereby the learned Court below has decreed the plaintiff suit for partition to the extent of 2/3rd share but directed the plaintiff's to deposit ad volorem court fee on the valuation of the share of the plaintiff.
(2) This Appeal has been filed against that direction by which the appellant was directed to deposit the ad volorem court fee on the market value of the property falling in the share of the appellant.
(3) It appears that the plaintiff-appellant along with another Mostt. Mahrajia Devi filed simple suit for partition being Partition Suit No. 101 of 1991 claiming partition to the extent of 2/3 share in the suit property. The facts are not disputed, therefore, it is not necessary to go into great details regarding the fact alleged by the plaintiff.
(4) The defendants-respondents appeared and filed contesting written statement contending inter alia that there had already been previous partition between the parties and, therefore, the partition suit is not maintainable.
(5) After trial, the learned Court below came to the conclusion that there had been no partition between the parties and, therefore, decreed the plaintiff suit for partition. However, in the last portion of the Judgment, the learned Court below directed the appellant-plaintiff to deposit ad volorem court fee on the market value of their share and a condition was put to the effect that if ad volorem court fee is not deposited, the preliminary decree will be meaningless and ineffective.
(6) The learned counsel for the appellant submitted that the suit, is a simple suit for partition and, therefore, ad volorem court fee is not payable. Initially, when the plaint was presented, the plaintiff filed the required Court fee of Rs. 29.25/- which was found sufficient. The learned Court below after trial decreed the plaintiff suit but without assigning any reason has directed to deposit ad volorem court fee, so, it is not sustainable.
(7) On the other hand, the learned counsel for the respondent submitted that since the respondents have prayed for recovery of possession, therefore, ad volorem court fee is payable.
(8) From perusal of the plaint as well as the Judgment, I find that it is a simple suit for partition. The plaintiff-appellant prayed for partition of their 2/3 share in the suit property and further prayed that the said share may be curved out by appointing Pleader Commissioner. Therefore, the ad volorem court fee in the suit was not payable. No reason has been assigned as to why the plaintiff is required to pay ad volorem court fee.
(9) In view of the above facts and circumstances of the case that part of the Judgment and decree whereby the appellant is directed to deposit ad volorem court fee on the market value of 2/3 share is not sustainable.
(10) In the result, the Appeal is allowed. That part of the Judgment and Decree whereby the appellant is directed to deposit ad volorem court fee on market value of 2/3 share is set aside and the plaintiff suit for partition is decreed. The impugned Judgment and Decree are modified to the extent indicated above. In the facts and circumstances of the case, no order as to costs.
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