Gloria Jose Kotturan v. A.V. Thomas and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH MONDAY, THE 12TH DAY OF DECEMBER 2011/21ST AGRAHAYANA 1933 WPC.No. 22785 of 2009 (O) IA NO.290/2007 IN OS NO.569/2006 OF ADDL.SUB JUDGE, NORTH PARAVUR. PETITIONER(S): GLORIA JOSE KOTTURAN, D/O. JULIAN J.DAVID, PAREEKKATT BUNGLAW, ALUVA KARA, ALUVA WEST VILLAGE, ALUVA TALUK. BY ADV.SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH RESPONDENT(S): 1. A.V.THOMAS REP. BY POWER OF ATTORNEY HOLDER K.P.VARGHESE, S/O. LATE PAILY, KANNOT HOUSE, UDYOGAMANDAL.P.O., ELOOR SOUTH, ERNAKULAM DIST. 2. PAULY.K.AYYAMPILLY, REP. BY POWER OF ATTORNEY HOLDER K.P.VARGHESE, S/O. LATE PAILY, KANNOTH HOUSE, UDYOGAMANDAAL .P.O. ELOOR SOUTH, ERNAKULAM DIST. 3. THOMAS J.DAVID @ TOMY, S/O. JOSEPH J.DAVID, PARAEKKATT BUNGALOW, ALUVA KARA, ALUVA WEST VILLAGE, ALUVA TALUK. 4 . JOSEPH.J.DAVID, S/O. JULIAN J.DAVID, PAREEKKATT BUNGLOW, ALUVA KARA, ALUVA WEST VILLAGE, ALUVA TALUK. WP(C)NO.22785/2009 2 5. ANNIE JOSEPH, W/O. JOSEPH.J.DAVID PAREEKKATT BUNGLOW ALUVA KARA ALUVA WEST VILLAGE ALUVA TALUK. **(*)** ADDL.RESPONDENTS 6 AND 7: 6. SULAIMAN KARADAN, S/O.LATE MUHAMMED KARADAN, KARADAN HOUSE, EDAKKARA PO, NILAMBOOR AMSOM, MALAPPURAM DISTRICT. 7. SALIM T.H., S/O.LATE HYDROSE, THEMBADATH HOUSE, TASS ROAD, ALUVA, ERNAKULAM DISTRICT. - **(*)** ADDL.R6 AND R7 ARE IMPLEADED AS ADDL.RESPONDENTS 6 AND 7 AS PER ORDER DATED 27.7.2011 IN IA NO.12076/2011. BY ADV.SRI.KURIAN ANTONY EDASSERY FOR R3, R4 & R5 SRI.T.KRISHNAN UNNI (SENIOR ADVOCATE)FOR ADDL.R6 & A7 SMT.P.A.SHEEJA FOR ADDL.R6 & A7 SRI.SAJU.S.A FOR ADDL.R6 & A7 SRI K.J.KURIACHAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)NO.22785/2009 ## APPENDIX ## PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF PLAINT IN OS NO.569/2006 OF SUB COURT,NORTH PARUR EXT.P2 TRUE COPY OF ORDER IN IA NO.290/2007 DATED 15.10.2007 EXT.P3 TRUE COPY OF ORDER DATED 18.03.2008 IN CRPNO.1039/2007 EXT.P4 TRUE COPY OF ORDER IN RP NO.405/2008 DATED 9.4.2008 EXT.P5 TRUE COPY OF REPORT DATED 12.01.2009 SUBMITTED BY THE ADVOCATE COMMISSIONER EXT.P6 TRUE COPY OF ORDER IN IA NO.290/2007 DATED 20.7.2009 ## RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF JUDGMENT DATED 12.3.1999 IN OS NOS.221/96 & 465/96 EXT.R1(b) TRUE COPY OF PLAINT DATED 22.9.2006 IN OS NO.362/2006 EXT.R1(c) TRUE COPY OF JUDGMENT DATED 10.6.2008 IN OS NO.362/2006 EXT.R7(a) TRUE COPY OF THE SALE SANNAD DATED 24.6.1966 EXT.R7(b) TRUE COPY OF THE DOCUMENT NO.3607/1966 OF SRO., ALUVA DATED 28.10.1966 EXT.R7(c) TRUE COPY OF DELIVERY REPORT IN OS NO.20/1958, DATED 9.11.66 EXT.R7(d) TRUE COPY OF THE PLAINT IN OS NO.569/2006 DATED 13.12.2006 EXT.R7(e) TRUE COPY OF THE JUDGMENT IN WP(C) NO.22931/2006 AND 22172/2006 OF THIS COURT DATED 6.10.2006 EXT.R7(f)TRUE COPY OF THE COMMON ORDER OF MUNSIFF COURT IN IA NO.2374/2006 AND IN IA NO.2040/2006 DATED 15.11.2006 IN OS 362/2006 EXT.R7(g) TRUE COPY OF THE CMA NOS.110/2006 AND 111/2006 BEFORE THE ADDITIONAL DISTRICT COURT, NORTH PARAVOOR DATED 6.12.2006 EXT.R7(h) TRUE COPY OF THE RECEIPT DATED 18.4.2011 ISSUED BY THE VILLAGE OFFICER, ALUVA, WEST VILLAGE, ALUVA EXT.R7(i) TRUE COPY OF THE TAX RECEIPT DATED 18.4.2011 ISSUED BY THE ALUVA MUNICIPALITY EXT.R7(j) TRUE COPY OF THE POSSESSION CERTIFICATE DATED 18.4.2011 ISSUED BY THE VILLAGE OFFICER, ALUVA, WEST VILLAGE, ALUVA. ///TRUE COPY// ## **THOMAS P. JOSEPH, J.** **-------------------------------------W.P.(C) No.22785 of 2009 -------------------------------------Dated this the 12[th] day of December, 2011.** ## **JUDGMENT** A litigation which started in the year, 2006 is still at the stage of sufficiency of court fee paid by petitioner/plaintiff. Though, the Supreme Court in ## **Lakshmi Ammal v. K.M.Madhavakrishnan and others ((1978) 4** **SCC 15)** has pointed out that courts are not required to waste their energy on peripheral matters like court fee unless it affects jurisdiction of the court and that court must go into the contentious issues in the matter, a finding as to whether court fee paid is correct or not is inevitable in this case having regard to the contentions raised in this proceeding. 2. Petitioner filed the suit (O.S.No.569 of 2006) in the court of learned Additional Sub Judge, North Paravur contending that there was no delivery of property pursuant to the decree in O.S.No.20 of 1958 of the court of learned Additional District Judge, North Paravur and sought for a declaration to that effect and other reliefs. The property which is subject matter of the suit is 30.66 Ares with two buildings thereon situated within the local limits of Aluva Municipality. It is not disputed that the buildings bear Municipal door numbers. Petitioner paid `8,500/- as court fee under Section 25(d)(ii) of the Kerala Court Fees and Suits Valuation Act (for short, “the Act”). Respondents who are the assignees from the decree holder in O.S.No.20 of 1958 filed I.A.No.290 of 2007 **WP(C)No.22785/2009** 2 claiming that the suit is to be valued under Sec.25(b) of the Act. That application was dismissed by the learned Sub Judge as per Ext.P2, order dated 15.10.2007 holding that court fee payable is under Sec.25(d)(ii) of the Act. 1[st] respondent challenged Ext.P2, order in C.R.P.No.1039 of 2007. This Court by Ext.P3, order dated 18.03.2008 held that the suit is to be valued under Sec.25(b) of the Act and remitted the case to the court below for fixation of market value. Petitioner sought a review of that order in R.P.No.405 of 2008. That petition was allowed by Ext.P4, order dated 09.04.2008. This Court clarified that learned Sub Judge shall decide whether the suit is to be valued under Sec.25(b) or (d)(ii) of the Act. 3. After Ext.P4, order on R.P.No.405 of 2008, learned Sub Judge appointed an Advocate Commissioner to inspect the property. The Advocate Commissioner submitted Ext.P5, report where it is stated that total extent of property – plaint A and B schedules together is about 73 cents with two buildings as aforesaid, bearing door numbers of Aluva Municipality. The Advocate Commissioner also reported that there are altogether 20 coconut trees of which six are yielding, a few jack fruit trees, mango trees, arecanut trees, sappotta, teak trees, champa, guava, etc. The Advocate Commissioner assessed income from the property based on yield from the six yielding coconut trees. Learned Sub Judge by the impugned order held that petitioner **WP(C)No.22785/2009** 3 has to value the subject matter under Sec.25(b) of the Act and that market value is to be fixed as per Sec.7(3A) of the Act. That order is under challenge in this petition filed under Article 227 of the Constitution. 4. Learned Senior Advocate for petitioner has contended that since the relief prayed for in the suit is a declaration that delivery report dated 09.11.1966 in O.S.No.20 of 1958 (of the court of learned Additional District Judge, North Paravur) is void and for consequential injunction restraining respondents from trespassing into the suit property, the subject matter is to be valued under Sec.40 of the Act. It is contended that challenge is to the delivery report and assignment deed executed by the decree holder in favour of respondents and hence, it is not market value of the property under Sec.25(b) or (d)(ii) of the Act which is to be taken into account but the consideration mentioned in the documents in question under Sec.40 of the Act. Reliance is placed on the decision of the Supreme Court in **Satheedevi v. Prasanna** **(2010 (2) KLT 642)** . Alternatively, it is contended that even if it is assumed that the subject matter is to be valued under Sec.25(b), it must be based on market value of the property to be assessed under Sec.7(2) of the Act. It is contended that report of the Advocate Commissioner would show that property in question is agricultural land and hence there is no warrant for the conclusion that market value is to be assessed under Sec.7(3A) of the Act. Learned **WP(C)No.22785/2009** 4 Senior Advocate has placed reliance on the decision in **Santhamma v. Prabhakaran (1986 KLT 889)** . A further contention advanced is that at any rate, as per amended Sec.7(3A) of the Act value of the property shall not be less than the fair value fixed by the District Collector under Sec.28A of the Kerala Stamp Act. But the learned Sub Judge has not gone into the question of fair value fixed by the District Collector. 5. Learned Senior Advocate for respondents contends that though Commissioner has reported that the property is cultivated with a few fruit bearing trees, that does not take away the character of suit property as a residential plot where certain fruit bearing trees are also planted. It is contended that notwithstanding the existence of fruit bearing trees property continued to be a residential plot situated in the Municipal Town and hence conclusion is irresistible that it is not agricultural land in which case assessment of market value under Sec.7(2) of the Act does not arise. According to the learned Senior Advocate, in the circumstances property is to be valued under Sec.7 (3A) of the Act. It is also contended that the argument that Sec.40 of the Act would apply cannot be sustained in view of the decisions of this Court in C.R.P.No.1039 of 2007 and R.P.No.405 of 2008 where this Court directed learned Sub Judge to consider whether it is Sec.25(b) or (d)(ii) of the Act which applied. So far as the order in C.R.P.No.1039 of 2007 as clarified by order in R.P.No.405 of 2008 remains, court below was bound to consider whether court **WP(C)No.22785/2009** 5 fee is payable under Sec.25(b) or (d)(ii) of the Act. It is argued that sufficient evidence was adduced to show the value of property it would fetch on the date of suit and hence no interference is required with the order under challenge. 6. So far as first argument based on Sec.40 of the Act is concerned, as things stand now the contention that said provision should apply cannot stand, for, though in C.R.P.No.1039 of 2007 by Ext.P3, order dated 18.03.2008 this Court held that court fee is payable under Sec.25(b) of the Act, the clarification made by Ext.P4, order in R.P.No.405 of 2008 is only that learned Sub Judge may consider whether it is Sec.25(b) or (d)(ii) of the Act which would apply. Hence the question whether Sec.40 of the Act applied does not arise. 7. The next question is whether Sub-sec.(2) or (3A) of Sec.7 of the Act should govern in the assessment of market value of the property. Sec.7 of the Act deals with determination of market value and Sub-sec.(2) deals with the market value of the 'agricultural land' (as brought in by Act 6 of 1991 with effect from 05.12.1990). Sub-sec.(3) of Sec.7 of the Act deals with market value of building while Sub-sec.(3A) deals with market value of property other than agricultural land falling under Sub-sec.(2) and building falling under Sub-sec.(3) **WP(C)No.22785/2009** 6 of Sec.7 of the Act. Sub-sec.(3A) states that market value of any property other than agricultural land and building falling under Sub-secs.(2) and (3) shall be the value it will fetch on the date of institution of the suit. 8. To appreciate the contention whether market value is to be assessed under Sub-sec.(2) or (3A) of Sec.7 of the Act, it has to be decided whether the land in dispute is 'agricultural land'. The said expression is not defined in the Act and hence one has to go by the meaning that expression carries in common parlance. 'Agricultural land' connotes land pertaining to or connected with agriculture. Referring to the expression 'agricultural land' occurring in Sec.2(e) of the Wealth Tax Act (where also the said expression is not defined), the Orissa and Andra Pradesh High Courts explained that expression in **Paramananda Das and another v. Sankar Rath (AIR 1951 Orissa 11)** and **Court of Wards, Paigah v. Commissioner of** **Wealth Tax (AIR 1969 Andhra Pradesh 345)** . In those decisions reference was made to the dictionary meaning of the expression 'agricultural land' and it is held that it is an open land which is either cultivated or which is fit for cultivation, that it is the inherent quality of the land which is to be taken into account and that the expression 'agricultural land' must be taken to include lands which are used or are capable of being used for raising any valuable plants or trees or for any other purpose of husbandry. **WP(C)No.22785/2009** 7 9. Though referring to Sec.72(b) of the Kerala Land Reforms Act this Court has also occasion to consider the meaning of 'agricultural land' in **M.D.Seminary v. P.J.John & others (1987 (1) KLJ 1231)** . There, the land involved lay interspersed between buildings in a Municipal Town. There were a few fruit bearing trees also in the said property. The question arose whether the holder of that parcel of land could be treated as a cultivating tenant of the holding. Reference was made to the expression 'agricultural land' and the decision of Full Bench of this Court in **V.N.Narayanan Nair and** **others v. State of Kerala and others (1970 KLT 659)** . Learned Judge held that the mere fact that some trees are planted in the land will not make the holding an 'agricultural land'. Learned Judge made reference to the Full Bench decision in **V.N.Narayanan Nair and others v. State of Kerala and others** where it was observed: “It is the purpose for which the land is held, not its accidental use at a particular point of time, that determines whether it is agricultural land or not. If the land is held for purposes of agriculture or for purposes ancillary thereto (such as, for pasture or for the residence of cultivators of land, agricultural labourers or village artisans), it is agricultural land.” **WP(C)No.22785/2009** 8 10. My attention is drawn to the decision in **Santhamma v.** **Prabhakaran** (supra). There of course, again referring to the question whether the person concerned is a cultivating tenant in respect of 23 cents of land situated in a corporation area with an old, thatched shed situated thereon, learned Judge held that the land is not appurtenant to the building. Facts of that case would reveal that there were 33 coconut trees most of which were fruit bearing. There were also certain other bearing trees and an old thatched shed. Simply because of the property is in the Corporation area it could not be held to be not an agricultural land, it was held. 11. There could be no doubt that simply because of the land happens to be in a Corporation or Municipality area it cannot come within the category of 'agricultural land'. As aforesaid, it is the purpose for which a land is entitled to be used, that is relevant for consideration. Whatever be the extent of land if it is entitled to be used for agricultural operation, necessarily it must come within the category of 'agricultural land'. On the other hand, if the land is primarily used for residential purpose, the mere fact of certain fruit bearing tress are accidentally planted in the said land will not take the property out of its character as a residential plot. 12. In this case, it is clear from the report of the Advocate Commissioner that there are two buildings situated in the compound - 73 cents **WP(C)No.22785/2009** 9 which is admittedly situated within the Municipal Town. It is also revealed that certain fruit bearing trees are planted in the said property of which 20 are coconut trees. Of those 20 coconut trees, only 6 are yielding. Other fruit bearing trees are like jack trees, mango trees, arecanut trees, sappotta, guava trees, etc.. These trees are normally found in residential plots as well. Hence merely for the reason of a few fruit bearing trees being planted in the property, I am unable to accept the contention that the property is 'agricultural' land to be assessed under Sec.7(2) of the Act. In that view of the matter, there is no reason to interfere with the decision of the learned Sub Judge that assessment should be under Sec.7(3A) and that court fee is payable under Sec.25(b) of the Act. 13. Then the next question is whether value of the property fixed by learned Sub Judge requires interference. In paragraph 7 of the impugned order, learned Sub Judge referred to the materials produced before him to fix the value the property would fetch at the time of institution of the suit. The documents produced by the respondents are Exts.A1 and A2, copy of judgments in L.A.R.Nos.255 of 2000 and 256 of 2000, in respect of acquisition of a portion of very same property in the year, 1998. There, the Land Acquisition Officer awarded land value at the rate of `1,80,000/- per Are and that was enhanced by the reference court by 55%. Learned Sub Judge held that land value fixed by the reference court would come to `2,79,000/- per **WP(C)No.22785/2009** 10 Are (`1,12,955/- per cent). That was in the year, 1998. Ext.A3 is the copy of assignment deed No.6404 of 2006 dated 14.11.2006 (that document was executed prior to the filing of the suit) as per which first respondent sold the suit property to the 2[nd] respondent for `1,51,20,000/-. Ext.A4 is the copy of sale deed No.305 of 2008 by which 2[nd] respondent sold the property to defendants 6 and 7 for `1,79,00,000/-. That transaction was in the year, 2008, ie, after institution of the suit in the year, 2006. Learned Sub Judge has relied on Ext.A3 which was executed just a month before institution of the suit where value of the suit property was fixed as `1,51,20,000/- and based on that, has directed petitioner to value the property under sec.7(3A) of the Act. 14. Learned Senior Advocate appearing for the petitioner has brought my attention to the decision in **P.N.Sekhara Menon v. Ismail Sait** **Ummar Sait & Others (1968 KLT 619)** and in particular, the observations in paragraph 4 where it is stated that court fee is fetter on the assertion of a right or the seeking of a remedy by a party and that the provisions of the law relating to court fee being ameliorative in the sense of enabling a party to pay a lesser court fee could be interpreted liberally. 15. No doubt as learned Judge has pointed out, provisions regarding liability for payment of court fee has to be construed liberally. It is also true that basically question of court fee is a matter between the plaintiff and the Court as it concerns revenue payable to the Government. **WP(C)No.22785/2009** 11 16. But, it is not as if respondents/defendants have no say at all in the matter and there are sufficient provisions in the Act itself which entitled the respondents to point out the insufficiency of court fee. I must also bear in mind that it is not merely insufficiency of court fee that is involved, the question as to which of the provisions would apply is also involved; whether it is agricultural land in which case court fee is payable based on market value of property under Sec.7(2) or it is non-agricultural land falling under Sub-sec. (3A) of Sec.7 so that what is relevant is value of property it fetches on the date of institution of the suit. Moreover, in Exts.P3 and P4, orders this Court directed learned Sub Judge to decide whether it is Sec.25(b) or (d)(ii) which apply. 17. The last argument which learned Senior Advocate has advanced is that at any rate, learned Sub Judge has not adverted to the amended Subsec.(3A) of Sec.7 of the Act which says that the market value fixed under Subsec.(3A) shall not be less than the minimum value fixed by the District Collect under Sec.28A of the Stamp Act. No doubt, learned Sub Judge has not referred to the fair value fixed under Sec.28A of the Stamp Act but, that in my view is of no consequence in this case. What the amended Sub-sec.(3A) of Sec.7 of the Act says is only that market value fixed under Sub-sec.(3A) shall not be less than the minimum value fixed by the District Collect under Sec.28A of the Stamp Act. It only means that the value fixed shall not be less than the **WP(C)No.22785/2009** 12 fair value fixed under Sec.28A of the Stamp Act. In the present case, referring to the documents executed between the respondents concerning the very same property and taking the document which is executed a month prior to institution of the suit, learned Sub Judge has fixed the land value which I do not find reason to interfere. Since the land in question is not agricultural land it has to be valued under Sub-sec.(3A) of Sec.7 of the Act and court fee is payable as found by the court below under Sec.25(b) of the said Act. In that view of the matter no interference is required with the impugned order. This Writ Petition is dismissed. **THOMAS P.JOSEPH, Judge.** **cks**