Lovely Das v. Subhadra

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 16TH DAY OF JULY 2020 / 25TH ASHADHA, 1942** ## **OP(C).No.873 OF 2020** **AGAINST THE JUDGMENT AND DECREE IN OS 166/2014 OF MUNSIFF COURT,VARKALA** ## **PETITIONER/PLAINTIFF:** **LOVELY DAS AGED 41 YEARS D/O. HARIDAS, KANJIRAM VILA VEEDU, AYANTHI CHERUNNIYOOR VILLAGE, FROM V.S. BHAVAN, VETTOOR DESOM, VETTOOR VILLAGE, VARKALA TALUK, VARKALA, THIRUVANANTHAPURAM 695 312.** **BY ADV. SRI.M.DINESH** ## **RESPONDENT/DEFENDANT** **SUBHADRA** **AGED 78 YEARS D/O. PARAMU, V.S. BHAVAN, VETTOOR VILLAGE, VETTOOR DESOM, VARAKALA TALUK, THIRUVANANTHAPURAM 695 312.** **R1 BY ADV. SRI.R.ANILKUMAR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C).No.873 OF 2020 2** ## **JUDGMENT** This Original Petition has been filed by the plaintiff in O.S.No.166 of 2014 on the files of the Munsiff’s Court, Varkala; and she assails the order of the said Court, as per which, she has been directed to value the suit correctly, by showing the market value of the plaint schedule property under Section 7(3)(A) of the Kerala Court Fees and Suit Valuation Act, 1959, finding that it is not an agricultural one. 2. Shri.M.Dinesh, learned counsel appearing for the petitioner, submitted that the sole reason stated by the learned Munsiff in having issued Ext.P3 is that the plaint does not have sufficient averments to the effect that the plaint Schedule property is an agricultural land. He says that, however, going by the schedule of the plaint schedule property, as also the valuation column, it would become ## **OP(C).No.873 OF 2020 3** ineluctable that it is an agricultural one and, therefore, that the plaintiff has shown the market value on such basis. He prays, therefore, that the impugned order be set aside and the learned Munsiff be directed to proceed with the suit accepting the valuation presently shown. 3. As a corollary submission Shri.M.Dinesh submits that even if this Court is to find favour with the impugned order, then his client may be given an opportunity of amending the plaint suitably under the provisions of Order VI Rule 17 of the CPC and he submits that this is imperative because the property is still remains as an agricultural land. 4. The learned counsel appearing on behalf the respondent, however, refuted the afore submissions of Shri.M.Dinesh asserting that, as has been recorded correctly by the Trial Court, the schedule of the property concerned show that there ## **OP(C).No.873 OF 2020 4** is a building thereon and does not in any manner describe the same as an agricultural land. He contents that, therefore, the Trial Court cannot be found fault with in having issued the impugned order, particularly when there is absolutely no averment in the plaint to the effect that the property concerned is an agricultural land. 5. I have examined the impugned order and I must say that I cannot find fault with it in any manner what so ever. This is because, as rightly stated therein, the plaint averments do not describe the property as being an agricultural one, nor does the schedule indicate so, especially because it is described therein to be a 'Purayidom' with a building and trees standing thereon. Of course, the submissions of Shri.M.Dinesh, learned counsel for the petitioner, is that the presence of the tress _ipso facto_ would show **OP(C).No.873 OF 2020 5** that the property is an agricultural one. 6. I am afraid that this submission cannot find my favour, because going by the schedule and the plaint averments as now available, it is indubitable that no Court can enter into a conclusion that the property is an agricultural land. 7. This is more so because the law is now well settled, including through the judgment of this Court in _**Narayanan Nair P. v** ._ _**Dr.Lokeshan Nair and Another [2014 (2) KLT 868** ],_ that while determining the nature of a property its predominant purpose will have to be looked into and hence the present opinion of the Trial Court, as indited in the impugned order, can certainly be not found fault with, at least going by the materials and pleadings presently available on record. 8. Therefore, in normal circumstances this Court would have been justified in ## **OP(C).No.873 OF 2020 6** dismissing this O.P. without any further orders. 9. However, since Shri.M.Dinesh pleads for a further opportunity for his client to establish that the land in question is an agricultural one and since the question whether it is so is purely one in the realm of facts, I deem it appropriate to show some latitude to the petitioner and to offer her one opportunity to establish this before the Trial Court, through appropriate methods, including by seeking amendment of the pleadings. 10. I make it clear that this lenitude is being shown to the petitioner solely because she asserts the property to be an agricultural one; which therefore, would require factual assessment based on all relevant factors, for which, I think the grant of a further opportunity would not be amiss. **OP(C).No.873 OF 2020 7** In the afore circumstances, I set aside the order impugned, not because I have found it to be in error, but so as to enable the petitioner one more opportunity to establish that the plaint schedule property is an agricultural one. Consequently, the Trial Court will rehear the parties on additional issue No.1 in O.S.No.166 of 2014, after affording necessary opportunities to them and issue orders thereon as expeditiously as is possible. In order to enable the Trial court to comply with the directions herein expeditiously, I direct the parties to mark appearance before the said court on the 7[th] of August, 2020. I further clarify that since I have not found the impugned order to be in error and since it has been set aside only for the reasons afore, it will certainly be upto the Trial court to take an appropriate **OP(C).No.873 OF 2020 8** decision on this issue, as also on any amendment application that may be filed by the petitioner, unfettered by any of my observations herein. This Original Petition is thus ordered. **Sd/DEVAN RAMACHANDRAN** **JUDGE** **MC/16.7.2020** **OP(C).No.873 OF 2020 9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE PLAINT IN O.S. NO.**| |---|---| ||**166/2014 ON THE FILE OF MUNSIFF COURT,**| ||**VARKALA.**| |**EXHIBIT P2**|**TRUE COPY OF THE WRITTEN STATEMENT IN O.S.**| ||**NO. 166/2014 ON THE FILE OF MUNSIFFS COURT,**| ||**VARKALA DATED 29.11.2014.**| |**EXHIBIT P3**|**TRUE COPY OF THE JUDGMENT DATED 4.2.2020 IN**| ||**ADDITIONAL ISSUED NO.1, IN O.S. NO.**| ||**166/2014 MUNSIFFS COURT, VARKALA.**| |**RESPONDENT'S/S**|**EXHIBITS:**| ## **NIL** **MC** **(TRUE COPY) PA TO JUDGE**