' SARDAR MUHAMMAD RAZA, J.---The disputed property consisting of a large valuable bungalow and a vacant site situated in the most populated Mohallah Upper Malikpura Abbottabad, admittedly belonged to one Sher Afzal Khan of Umar Zai, Charsadda. He died admittedly leaving behind legal heirs from two wives. One set of legal heirs from one wife sold the aforesaid property (fully detailed in the heading of the plaint) in favour of Anwar Khan and 4 others. The other set of legal heirs Sher Bahadur Khan etc. Including the surviving wife (plaintiff No,4) filed a suit for possession by partition of 47/96 share against the vendees.
2. The vendees contested the suit on various grounds like that of partial partition, deficient court- fee etc. And ultimately Mr. Muhammad Arshad learned Senior Civil Judge, Abbottabad vide his judgment and decree dated 23-6-1994 granted the plaintiffs a preliminary decree for possession through partition of the aforesaid share but, at the same time, directed the plaintiffs to affix requisite court-fee on the memorandum of plaint within one month failing which the plaint was to stand rejected. In the operative part of the judgment some mode of physical partition was also suggested.
3. The plaintiffs/decree-holders did not affix the court-fee but instead filed this regular first appeal challenging the findings on numerous grounds, the overall effect whereof was that the conditional grant of decree and the suggested mode of partition practically amounted to non-suiting the plaintiffs.
4. We had the opportunity of having been apprised of various legal aspects of the case through the assistance of the learned counsel on either side. It is but obvious that in case of any deficiency in court-fee, the direction to make good the deficiency is given by the Court and in case it is not complied with, the plaint is to be rejected under Order VII, Rule 11, C.P.C. In the judgment of the trial Court the order is that of rejection of the plaint but while drawing the decree sheet therefrom, the words used are those of the dismissal of suit.
5. The rejection of plaint and the dismissal of suit are two substantially different legal phenomenae and entail a few legal consequences that also are materially different. For example a rejected plaint can be brought again, within the period of limitation, if the shortcoming involved is removed by the plaintiff. The order does not operate to be res judicata. On the other hand a. Dismissal of suit operates as res judicata between the parties.. The decree-sheet seeming to have been drawn in routine by the staff of the Court and not having properly been looked into by the Judge, is an act of the Court and hence would not be jeopardising for any of the parties and would not be beneficial for one at the cost of the other.
6. Unambiguous language of Order VII, rule 11, C.P.C. Would indicate that the plaint can be rejected by the Court only when specific amount of court-fee is asked to be affixed against specific and definite value of the subject-matter determined by the Court without conjectures and surmises and without leaving any room for the parties to resort to their own calculations and speculations.
This is over and above the mandatory requirement of providing reasonable time and opportunity to make good the deficiency within such time. It is only thereafter that the plaint is rejected.
7. The leaned trial Judge has held Rs,10,00,000 as the approximate value of the shares of the plaintiffs and hence has directed the affixation of court-fee thereon. The approximation in such cases are not allowed because such determination of amount in approximation might ultimately reduce the value of the shares of the plaintiffs or might happen to enhance it, especially in the instant case, when such value will become material at the time of proceedings of final decree.
Neither the value of the subject-matter is definite nor the definite amount of court-fee is directed to be affixed and hence the order is unlawful and cannot entail upon the rejection of plaint. In other words it is not an order at all passed under Order VII, Rule .11, C.P.C.
8. Moreover it was incumbent upon the Court to have first given an opportunity to affix the court- fee without finally deciding the case. Such opportunity also was not given and the order was passed at a moment when the Court had become functus officio. The grant of opportunity and reasonable time for affixing court-fee was mandatory before the final decision of the suit and before passing any order under Order VII, Rule 11, C.P.C.
9. This point was amicably settled by our own Supreme Court in its latest judgment given in "Sardar Ahmad Yar Jang v. Sardar Noor Ahmad Khan" reported in PLD 1994 Supreme Court 688, wherein it was held that a plaint could not be rejected under Order VII, Rule 11 (c), C.P.C. Without first determining the deficiency in the amount of court-fee and without first allowing reasonable time to the plaintiff to make up the deficiency.
10. So far as the memorandum of appeal is concerned the appellants have affixed an amount of Rs,3,000, the justification whereof would be settled at the relevant moment.
11. Last question that came up for determination before us was, as to whether the plaintiffs were at all liable to affix court-fee in accordance with the value of their shares, the possession of which was sought through partition. This point goes to the very root of the present dispute and hence requires an elaborate discussion.
12. The instant one is a suit by co-sharers and is essentially for partition. It is a matter of common knowledge and by now a settled principle of law that a. Co-sharer is deemed always to be in possession of each and every inch of the joint property. Sometimes a co-sharer is in physical possession of a portion and sometimes he happens to be in the construction possession. On the other hand we also are mindful of another principle of law that the devolution of inheritance is an automatic phenomenon. A legal heir under Muslim Law of Inheritance becomes automatically an owner in the property the moment a porosities dies and the inheritance devolves. It does not require to be reduced into writing and it does not require even the attestation of mutation. In the instant case the plaintiffs admittedly are the legal heirs of Sher Afzal Khan and had become full owners/co-sharers in the disputed property according to their shares of inheritance regardless, of the fact that some co-sharers had sold the same in favour of the present defendants/vendees.
13. On the one hand we believe under the law, that such co-sharership is automatic and that each co-sharer is deemed to be in possession of each and every inch. Of the property, that no other co- sharer can claim adverse possession for how long so ever his physical possession may be and; on the other hand when the same co-sharer comes to ask for partition, we deem him out of possession and ask him to affix court-fee on the proportionate valuation. This is a paradox in itself and a contradiction in terms. Such contradictions and paradoxes do not appear in good laws and in sound interpretations. We, therefore, hold this firm view that a co-sharer in the property specially through inheritance is a co-sharer in possession of each and every inch of the property. Whether such possession is physical or constructive, is altoghther immaterial. If such legal heir asks for partition, the substantial relief that he ask for is not the possession but the separation of his share from the other co-sharers. Regardless of the fact that while drafting such suit for partition it has become routine to ask for possession.
14. Far back in the year 1941, similar question had come up before a Full Bench of Lahore High Court in "Dewan Chand v. Dhani Ram and others" (AIR 1941 Lahore 123). It was a suit for partition of four houses and the question referred to the Full Bench related to the amount of court-fee payable thereon. After having elaborately discussed case-law on the subject, it was held that the matter fell under Schedule 2, Article 17 of the Court Fees Act. The plaint as well as the memorandum of appeal arising out of such suit is chargeable with a' fixed court-fee of Rs,10 only. Regardless of the fact whether money value of subject-matter could be estimated or not, it was held sufficient that the plaintiffs claimed to be in actual or constructive possession. A legal heir is always deemed to be in possession of the property and it remains immaterial whether such possession is actual or constructive.
15. Similar view was taken by his, lordship Mr. Justice Sardar Muhammad Iqbal of the Lahore High Court in "Muhammad Sharif v. Mst. Natho and others" (PLD 1965 Lahore 686). It was observed that in a suit for partition physical possession of property was not necessary to attract application of Article 17(VI) of Schedule 2 of the Court Fees Act. The learned Judge left the matter for Courts to see nature of .Cause of action and relief claimed.
16. In the instant case, the circumstances suggest that the plaintiffs are legal heirs of the propositus and are co-sharers by way of inheritance who shall always be deemed to be in possession of the property. Whether it is actual or constructive, is immaterial because in constructive possession they shall always be deemed to be. Borrowing words from the Honourable Judge, we reiterate that the Court Fees Act was passed in order to secure revenue for the benefit of the State and not to arm a litigant with a weapon of technicality to harass his opponent.
17. Thus it is held that in the instant case the plaint as well as the memorandum of appeal did not require to be affixed an ad valorem court-fee.
18. When no ad valorem court-fee was leviable the impugned order was illegal and even was violative of the mandatory provisions of Order VII, Rule 11(c), C.P.C., as held earlier, and was further passed in a manner when the Court had become fuctus officio. We further hold that the court-fee affixed on the memorandum of appeal is refundable under section 15 of the Court Fees Act.
19. Consequently the appeal is accepted, the order passed with reference to Order VII, Rule 11 (c), C.P.C. Is set aside, the preliminary decree for partition of 47/96 shares granted in favour of the plaintiffs is upheld and the mode of partition suggested while passing preliminary decree is also set aside being illegal. The same shall be considered at the time of proceedings in final decree. The amount of court-fee affixed on the memorandum of appeal shall stand refunded to the appellants.
Owing to the legal questions involved, paities are left to bear their own costs.