' ABDUL RASOOL MEMON, J.---This Revision Application calls in .Question the concurrent findings of the two Courts below, the appeal filed by the applicant against the order dated 1-10-2010 passed by VIth Senior Civil Judge Karachi East in Suit No,524/2006, was dismissed by the Vth Additional District and Sessions Judge Karachi vide judgment dated 18-10-2011.
2. Briefly the facts leading towards instant Revision are that the applicant/plaintiff filed a suit for partition, separate possession mesne profit and permanent injunction against the respondents claiming therein that the plot measuring 1000 sq. Yds. Situated in Block-I, Shah Faisal Colony, Karachi was allotted/leased out to Taj Muhammad, predecessor in interest of both parties, who after his death left behind the applicant and respondents as his legal heirs. It was alleged that the applicant came to know that respondent No,1 in connivance with K.D.A. Officers had got fraudulently changed the record of said plot and allotted/transferred the plot in question in her name; then he moved an application to District Officer, Revenue Karachi and after inquiry when the respondent No,1 could not refuse the fact of the other legal heirs of the deceased, transfer/allotment in her name was cancelled/withdrawn and the property was stood restored in the name of original allottee (deceased Taj Muhammad).
3. It was further alleged that the respondent/defendant No,1 managed a talse gift deed of her deceased husband's name and on basis whereof filed a suit against the applicant which was dismissed with special costs of Rs,5,000/- and when applicant asked for demarcation of plot and delivery of separate possession, respondents did not do so and finally refused then he after service of legal notice, brought the instant suit.
4. Despite service of notices, respondents did not appear in trial court to contest the suit, ultimately an ex parte decree was passed in favour of the applicant. At the time of execution, respondents Nos.9 to 12 filed an application under section 12(2), C.P.C. For setting aside the ex parte judgment and decree of trial court by claiming themselves to be legal heirs of Mst. Yasmin, she was daughter of late Taj Muhammad and not joined in the case, said application was allowed, consequently, judgment and decree passed in favour of the applicant was recalled by the trial Court and the respondents were given an opportunity to contest the matter. In the subsequent round all the respondents/defendants filed their written statement arid the applicant put himself in witness box.
In cross-examination he admitted the value of the suit property to the tune of Rs,1,00,00,000/- (Rupees one crore only). On 5-9-2009 the respondents Ned proposal that the suit property be put in open auction and sale proceeds may be distributed amongst the legal heirs in accordance with their shares. In view of above proposal, the trial Court passed an order whereby Nazir of District Court West was appointed as Commissioner, who submitted his report disclosing the value of the suit property as Rs,1,50,00,000/- (Rupees one crore fifty lac only). Thereafter the respondents did not agree to give share to the applicant as per value assessed by the Nazir of the Court and filed an application under Order VII, rule 10, C.P.C. For return of plaint to the applicant for presentation in the Court having pecuniary jurisdiction but the learned trial Court after hearing the parties rejected the plaint under Order VII, rule 11, C.P.C. Suo motu by observing that the value of the property tentatively assessed was Rs,1,00,00,000/- which was much more than the suit valued by the petitioner, thus, his assertion regarding value of suit was termed as mis-statement. The order of trial Court was assailed in appeal and learned Vth Additional District and Sessions Judge Karachi East vide his judgment dated 18-10-2011 dismissed the same and maintained the order of the trial Court. Both the decisions have been impugned in this Revision Application.
5. Learned counsel for the applicant submits that the applicant being co-sharer automatically deemed to be in possession of the property irrespective of the fact that such possession was physical or constructive, thus the petitioner has prayed for separate possession of his property, therefore, no ad valorem Court fee is leviable on the plaint as per Schedule-II Article 17(vi) of the Court Fees Act, as such, rejection of plaint on the ground of non-fixation of court fee was not warranted in law and even otherwise the rejection of plaint straight away without hearing the applicant/plaintiff on the point of valuation of the suit is against the settled principle of law. In support of his contention he has placed reliance on the cases of Muhammad Shaukat and others v. Haji Ghulam Muhammad and others (2007 CLC 532), Sher Bahadur Khan and 3 others v. Anwar Khan and 4 others (1996 CLC 1624) and lqbal Ahmed and 3 others v. Mst. Aziz Bano and 2 others (2010 M LD 784).
6. On the other hand, learned counsel for the respondents argues that the applicant in his cross- examination has admitted the value of the property in question as Rs,1,00,00,000/- therefore, the trial Court was justified in rejecting the plaint of the suit as it was not properly valued with mala fide intention, as such, there is no illegality or irregularity apparent on the face of it and concurrent findings of the two Courts below do not require any interference; lastly he prays for rejection of the appeal.
7. After considering the arguments of both the learned counsel and going through the record, it appears that the applicant filed the suit for partition, separate possession, mesne profit and permanent injunction. It is an admitted fact on record that the applicant and the respondents are legal heirs of deceased Taj Muhammad and thus all are co-sharer in his property. It is settled law that every co-sharer is deemed to be in possession of each and every inch of the property whether such possession is physical or constructive, would be treated as immaterial. In para-9 of the plaint filed by the applicant, he has clearly asked for separation of his share after demarcation from other co-sharers. A similar question came up before a Division Bench of Peshawar High Court in a case of Sher Bahadur Khan and 3 others (supra) wherein it was elaborately discussed and held that such matters fall under Schedule-II, Article 17 of the Court Fees Act and the plaint as well as appeal arising out of the said suit is chargeable with fixed Court fee of Rs,10/- only.
8. In the instant case admittedly the applicant is one of the legal heirs of the porosities and is co- sharer by way of inheritance, as such, he shall always be deemed to be in possession of the property.
9. In view of the above discussion, I am of the opinion that in the instant case the plaint did not require to be affixed an ad valorem Court fee according to the value and share of the petitioner.
10. It is surprising to note that an application was moved under Order VII, rule 10, C.P.C. For return of the plaint to the applicant/plaintiff for presenting the same before the Court having pecuniary jurisdiction but the trial Court without determining the proper value applying with the mandatory requirement, for providing reasonable time and opportunity to make the deficiency good within the time, straightaway rejected the plaint which is contrary to the provisions of Order VII, rule 11,
11. In the case in hand though ad valorem Court fee was not required as already discussed in the supra para., therefore, the very order of rejection of the plaint by the trial Court and upholding by the appellate Court are not sustainable in law, thus, the same are hereby set aside and the matter is remanded to the trial court for proceeding the case on merits in accordance with law. Both the parties are left to bear their own costs.