MUHAMMAD AMEER BHATTI, J. --- The reasons stated in the C.M. No. 1193-C/2010 supported by the affidavit of the learned counsel are sufficient for the restoration of the main case. Consequently, this petition is restored to its original number. C.M. Stands disposed of.
2. This civil revision has arisen from the judgment and decree dated 25.3.2000 passed by the learned Additional District Judge, Pakpattan, whereby the learned Judge after setting aside the judgment and decree of the learned Trial Court remanded the case back to the learned Trial Court after framing the additional issue on the appeal filed by the present petitioner. However, petitioner has been directed to affix the Court-fee to the tune of Rs. 15,000/- on the memorandum of appeal within four days from the order of the Court. This portion of the judgment, i.e. Affixation of Court-fee in a sum of Rs. 15,000/- has been assailed through this revision petition.
3. The brief facts of the case are that the petitioner filed a suit for possession through partition regarding the properties/land, mentioned in para No. 1 of the plaint (which needs not to be mentioned here). The suit was contested by the respondents by filing their written statement.
Though the petitioner has been admitted co-sharer in the property/land, however, issues have been framed from the divergent pleadings of the parties. After recording the evidence of both the parties, the suit ultimately was dismissed. On an appeal filed by the petitioner, the learned first Appellate Court vide impugned judgment set aside the judgment and decree of the learned Trial Court and remanded the case back for decision afresh by making some observations and framing an additional issue and direction has been issued to decide the matter again after providing the opportunity of hearing to the parties. However, the learned first Appellate Court had also issued direction to the petitioner to affix the Court-fee to the tune of Rs. 15,000/- on the memorandum of appeal. It was also held by the learned first Appellate Court that this Court-fee was also required to be affixed on the plaint.
4. ' The learned counsel for the petitioner contends that the judgment of the learned first Appellate Court to the extent of affixation of Court-fee on plaint as well as the memorandum for appeal is not in accordance with law and the order is not tenable to this extent in the eye of law.
5. I have considered the arguments of the learned counsel for the petitioner and gone through the record of the case.
6. It is an admitted fact that the parties i.e. Plaintiff and defendants are co-sharers and this fact has not been denied by the defendants/respondents by filing their written statement. Dispute might have been about the share and according to the settled law that all the co-sharers are always deemed to be in possession of each and every inch of the joint property. Although sometimes a co-sharer is in physical possession of a specific portion and sometimes he happens to be in constructive possession. Even otherwise, no one claims adverse possession against the other co-sharer as to for how long he/she in physical possession may be. So every co-sharer is entitled to be in possession of common property through the other co-sharer in actual possession thereof. Therefore, Court-fee of value of Rs. 10/-paid by the plaintiff on her plaint has been rightly affixed by the plaintiff/petitioner, as a matter fell under Schedule II, Article 17 of the Court-Fees Act.
Thus, the plaint as well as the memorandum of appeal arising out of such suit is chargeable with fixation of Court-fee of Rs. 10/- only. Regardless of the fact whether value of the suit for the purpose of subject-matter could be estimated or not, it was suffice that the plaintiff claimed to be in actual and constructive possession. Consequently, the judgment of the learned first Appellate Court to the extent of directing the petitioner to affix the Court-fee to the tune of Rs. 15,000/- on the memorandum of appeal as well as the plaint is repugnant to the mandatory provision of law and legally unsustainable. As a result of above discussion, this petition is accepted and the judgment of the learned first Appellate Court is set aside to this extent.
7. Parties are directed to appear before the learned Senior Civil Judge on 20.12.2011, who shall take on this case either himself or entrust it to any learned Civil Judge for its decision in terms of the judgment of the learned Additional District Judge.
8. Before parting with the judgment, the learned Senior Civil Judge is directed to issue fresh notices to the respondents (as they failed to appear before this Court, perhaps they have no interest in the present petition), in the interest of justice.
9. This petition is allowed in the above terms. No order as to costs.
Civil revision .